G.R. No. 73155 July 11, 1986 PATRICIO TAN, FELIX FERRER, JUAN M.

HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL,respondents. Gamboa & Hofilea Law Office for petitioners. ALAMPAY, J.: Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law provides: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the province to be known as the Province of Negros del Norte. SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or less. SEC. 3. The seat of government of the new province shall be the City of Cadiz. SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a

majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province. SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be charged to local funds. SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24) Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that See. 3. No province, city, municipality or barrio 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. Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and these requisites are: 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 alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6) Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant case affecting the legality, constitutionality and validity of such

exercise which should properly be passed upon and resolved by this Court. The plebiscite was confined only to the inhabitants of the territory of Negros del Nrte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action will be ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that petitioners have brought out. Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing official proclamation of the results of the plebiscite held on January 3, 1986. Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than those living within the territory of the new province of Negros del Norte to be not in accordance with the Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal nullity; And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo pp. 9-10). Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986. Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents state that the powers of the BatasangPambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government Code have been complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new Province of Negros del Norte. Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted: 1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the barangays to be separated, should be excluded in the plebiscite.

2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. ... 3. ... Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it, That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia. Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less. As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted on January 3, 1986; that as a result

thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said province created were announced. On these considerations, respondents urge that this case should be dismissed for having been rendered moot and academic as the creation of the new province is now a "fait accompli." In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged. Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration. Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following: SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less. (Emphasis supplied). However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the

northern portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte. SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or less. Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows: xxx xxx xxx This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila. Land Area (Sq. Km.) 1. Silay City ...................................................................214.8 2. E.B. Magalona............................................................113.3 3. Victorias.....................................................................133.9 4. Manapla......................................................................112.9 5. Cadiz City ..................................................................516.5 6. Sagay .........................................................................389.6 7. Escalante ....................................................................124.0 8. Toboso.......................................................................123.4 9. Calatrava.....................................................................504.5 10. San Carlos City...........................................................451.3

11. Don Salvador Benedicto.................................... (not available) This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him. (SGD.) JULIAN L. RAMIREZ Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90). Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90). No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads: SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province. However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite. Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the 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. In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to

protests on the ground that what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the wrong brought to its attention. On the merits of the case. Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again quote: SEC. 3. No province, city, municipality or barrio 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. It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte. We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with.

No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the Idol therein. We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry. Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which should be reckoned in the resolution of this case. What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that would constitute the new municipality. This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how

the pertinent provision of the Constitution should be correctly interpreted. The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected." It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote: 2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision. This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case. Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted However, even this consideration no longer retains persuasive value. The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case

at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects cf the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein. It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution. We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected. In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by

holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a selfserving phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners. Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary. As contended by petitioners, Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not contemplate distinct situation isolated from the mutually exclusive to each other. A Province maybe created where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered. It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true. It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that

this Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored. It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another new political unit, is hereby abandoned. In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity. The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist. Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed. It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents 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. Such an interpretation is strained, incorrect, and fallacious. 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, text, 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). The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909). It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned. Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied). It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate and the power of a vigilant people. Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of

their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein. WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void. SO ORDERED. Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur. Melencio-Herrera, J., concurs in the result. Separate Opinions TEEHANKEE, C.J., concurring: I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the whole province. The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one day before they filed the present rush petition on December 23, 1985 to seek a restraining

order to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and required respondents' comment. The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections-the unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41). The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It

follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule. The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials.

in any manner the legal existence of the mother Municipality of Bayugan. Sec. 2. The boundaries of the new Municipality of Sibagat will be: Beginning at the point of intersection of the Cabadbaran-Old Bayugan and Surigao del Sur boundaries; thence in a southernly direction following the Old Bayugan and Cabadbaran, Old Bayugan and Butuan City, Old Bayugan and Las Nieves boundaries, until it reaches the point of intersection of Old Bayugan, Esperanza and the Municipality of Las Nieves; ... Sec. 3. The seat of government of the newly created municipality shall be in Barangay Sibagat. Sec. 4. Except as herein provided, all provisions of laws, now or hereafter applicable to regular municipalities shall be applicable to the new Municipality of Sibagat. Sec. 5. After ratification by the majority of the votes cast in a plebiscite to be conducted in the area or areas affected within a period of ninety (90) days after the approval of this Act, the President (Prime Minister) shall appoint the Mayor and other Officials of the new Municipality of Sibagat. Petitioners are residents and taxpayers of Butuan City, with petitioner, Clementino Torralba, being a member of the Sangguniang Panglunsod of the same City. Respondent municipal officers are the local public officials of the new Municipality. Section 3, Article XI of the 1973 Constitution, said to have been infringed, is reproduced hereunder: Sec. 3. No province, city, municipality, or barrio 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 unit or units affected. The thrust of petitioners' argument is that under the aforequoted provision, the Local Government Code must first be enacted to determine the criteria for the creation, division, merger, abolition, or substantial alteration of the boundary of any province, city, municipality, or barrio; and that since no Local Government Code had as yet been enacted as of the date BP 56 was passed, that statute could not have possibly complied with any criteria when respondent Municipality was created, hence, it is null and void.

G.R. No. L-59180 January 29, 1987 CLEMENTINO TORRALBA and RESOLUTION L. RUGAY, petitioners, vs. THE MUNICIPALITY OF SIBAGAT, PROVINCE OF AGUSAN DEL SUR and ITS MUNICIPAL OFFICERS,respondents.

MELENCIO-HERRERA, J.: Challenged in the instant Petition, as violative of Section 3, Article XI of the 1973 Constitution, is Batas Pambansa Blg. 56, enacted on 1 February 1980, creating the Municipality of Sibagat, Province of Agusan del Sur. The pertinent provisions of BP 56 read: Sec. 1. The barangays of Ilihan, Sinai, Sibagat, El Rio, Afga, Tabontabon, Perez, Magsaysay, Santa Cruz, Santa Maria, San Isidro, Villangit, Del Rosario, Anahauan Mahayahay, and San Vicente, all in the Municipality of Bayugan, Province of Agusan del Sur, are hereby separated from said municipality to form and constitute an independent Municipality of Sibagat without affecting

It is a fact that the Local Government Code came into being only on 10 February 1983 so that when BP 56 was enacted, the code was not yet in existence. The evidence likewise discloses that a plebiscite had been conducted among the people of the unit/units affected by the creation of the new Municipality, who expressed approval thereof; and that officials of the newly created Municipality had been appointed and had assumed their respective positions as such. We find no trace of invalidity of BP 56. The absence of the Local Government Code at the time of its enactment did not curtail nor was it intended to cripple legislative competence to create municipal corporations. Section 3, Article XI of the 1973 Constitution does not proscribe nor prohibit the modification of territorial and political subdivisions before the enactment of the Local Government Code. It contains no requirement that the Local Government Code is a condition sine qua non for the creation of a municipality, in much the same way that the creation of a new municipality does not preclude the enactment of a Local Government Code. What the Constitutional provision means is that once said Code is enacted, the creation, modification or dissolution of local government units should conform with the criteria thus laid down. In the interregnum before the enactment of such Code, the legislative power remains plenary except that the creation of the new local government unit should be approved by the people concerned in a plebiscite called for the purpose. The creation of the new Municipality of Sibagat conformed to said requisite. A plebiscite was conducted and the people of the unit/units affected endorsed and approved the creation of the new local government unit (parag. 5, Petition; p. 7, Memorandum).lwphl@it In fact, the conduct of said plebiscite is not questioned herein. The officials of the new Municipality have effectively taken their oaths of office and are performing their functions. A dejure entity has thus been created. It is a long-recognized principle that the power to create a municipal corporation is essentially legislative in nature. In the absence of any constitutional limitations a legislative body may Create any corporation it deems essential for the more efficient administration of government (I McQuillin, Municipal Corporations, 3rd ed., 509). The creation of the new Municipality of Sibagat was a valid exercise of legislative power then vested by the 1973 Constitution in the Interim Batasang Pambansa.

We are not unmindful of the case of Tan vs. COMELEC (142 SCRA 727 [1986]), striking down as unconstitutional BP Blg. 885 creating a new province in the Island of Negros known as the Province of Negros del Norte, and declaring the plebiscite held in connection therewith as illegal There are significant differences, however, in the two cases among which may be mentioned the following. in the Tan case, the Local Government Code already existed at the time that the challenged statute was enacted on 3 December 1985; not so in the case at bar. Secondly, BP Blg. 885 in the Tan case confined the plebiscite to the "proposed new province" to the exclusion of the voters in the remaining areas, in contravention of the Constitutional mandate and of the Local Government Code that the plebiscite should be held "in the unit or units affected." In contrast, BP 56 specifically provides for a plebiscite "in the area or areas affected." In fact, as previously stated, no question is raised herein as to the legality of the plebiscite conducted. Thirdly, in the Tan case, even the requisite area for the creation of a new province was not complied with in BP Blg. 885. No such issue in the creation of the new municipality has been raised here. And lastly, "indecent haste" attended the enactment of BP Blg. 885 and the holding of the plebiscite thereafter in the Tan case; on the other hand, BP 56 creating the Municipality of Sibagat, was enacted in the normal course of legislation, and the plebiscite was held within the period specified in that law. WHEREFORE, the Petition is hereby dismissed. No costs. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla and Bidin, JJ., concur.

Separate Opinions CRUZ, J., concurring: I concur on the assumption that the required plebiscite, although not questioned here, nevertheless complied with Article XI, Section 3, of the 1973 Constitution, and was duly held "in the unit or units affected," i.e. not only in the proposed municipality but also in the mother municipality, in line with Tan v. Commission on Elections (142 SCRA 727), reversing Paredes v. Executive Secretary (128 SCRA 6) and Lopez v. Metro Manila Commission (136 SCRA 633) insofar as these cases held that the plebiscite could be confined only to the political unit proposed to be created.

BAI SANDRA S. A. SEMA, Petitioner, vs. COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178628 PERFECTO F. MARQUEZ, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. DECISION CARPIO, J.: The Case These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission on Elections (COMELEC) treating Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan.2 The Facts The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first legislative district consists of Cotabato City and eight municipalities.3 Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054).4 Although under the Ordinance, Cotabato City forms part of Maguindanaos first legislative district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in the plebiscite held in November 1989. On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA Act 201 provides: G.R. No. 177597 July 16, 2008 Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of Maguindanao and

constituted into a distinct and independent province, which is hereby created, to be known as the Province of Shariff Kabunsuan. xxxx Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional Governor or election of the governor and majority of the regular members of the Sangguniang Panlalawigan. The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their unexpired terms in the province that they will choose or where they are residents: Provided, that where an elective position in both provinces becomes vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to a higher elective vacant position and for the time being be appointed by the Regional Governor, and shall hold office until their successors shall have been elected and qualified in the next local elections; Provided, further, that they shall continue to receive the salaries they are receiving at the time of the approval of this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there shall be no diminution in the number of the members of the Sangguniang Panlalawigan of the mother province. Except as may be provided by national law, the existing legislative district, which includes Cotabato as a part thereof, shall remain. Later, three new municipalities6 were carved out of the original nine municipalities constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were the municipalities constituting its second legislative district. Cotabato City, although part of Maguindanaos first legislative district, is not part of the Province of Maguindanao. The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on 29 October 2006. On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to "clarify the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province" under MMA Act 201. In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative

District of Maguindanao." Resolution No. 07-0407, which adopted the recommendation of the COMELECs Law Department under a Memorandum dated 27 February 2007,7 provides in pertinent parts: Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the recommendation of the Law Department that pending the enactment of the appropriate law by Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied) However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district is composed only of Cotabato City because of the enactment of MMA Act 201.8 On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending Resolution No. 07-0407 by renaming the legislative district in question as "Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City)."91avvphi1 In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of "Shariff Kabunsuan with Cotabato City," prayed for the nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the Constitution10 and Section 3 of the Ordinance appended to the Constitution.11 Thus, Sema asserted that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanaos first legislative district despite the COMELECs earlier directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanaos reapportioned first legislative district.12 Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress power to create or reapportion legislative districts. In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative, not quasi-judicial, power and (2) Semas prayer for the writ of prohibition in G.R. No. 177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1

June 2007 as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City. In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that she was seeking election as representative of "Shariff Kabunsuan including Cotabato City." Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed Maguindanaos first legislative district. Respondent Dilangalen further claimed that the COMELEC could not reapportion Maguindanaos first legislative district to make Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively with Congress, not to mention that Cotabato City does not meet the minimum population requirement under Section 5 (3), Article VI of the Constitution for the creation of a legislative district within a city.13 Sema filed a Consolidated Reply controverting the matters raised in respondents Comments and reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902. In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province. The parties submitted their compliance as follows: (1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v. Salas14stated that "when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the apportionment of a legislative district incident to the creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution mandate the apportionment of a legislative district in newly created provinces. (2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the propriety of issuing Resolution

Nos. 07-0407 and 7902 and joined causes with Sema, contending that Section 5 (3), Article VI of the Constitution is "self-executing." Thus, every new province created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives even in the absence of a national law; and (3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the "province" contemplated in Section 5 (3), Article VI of the Constitution is one that is created by an act of Congress taking into account the provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures relating to national elections, which encompasses the apportionment of legislative districts for members of the House of Representatives; (c) recognizing a legislative district in every province the ARMM Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of Representatives as the Regional Assembly can create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not entitled to a representative in the House of Representatives. On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province.15 In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their respective Memoranda on the issues raised in the oral arguments.16 On the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the following positions: (1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts, legislative powers over "other matters as may be authorized by law for the promotion of the general welfare of the people of the region" and (b) as an amendment to Section 6 of RA 7160.17 However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of

the power to "prescribe standards lower than those mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X of the Constitution.18 Thus, Sema proposed that Section 19 "should be construed as prohibiting the Regional Assembly from prescribing standards x x x that do not comply with the minimum criteria" under RA 7160.19 (2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional on the following grounds: (a) the power to create provinces was not among those granted to the autonomous regions under Section 20, Article X of the Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X of the Constitution and the Equal Protection Clause; and (3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional because (a) it contravenes Section 10 and Section 6,20 Article X of the Constitution and (b) the power to create provinces was withheld from the autonomous regions under Section 20, Article X of the Constitution. On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province, Sema and respondent Dilangalen reiterated in their Memoranda the positions they adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it unnecessary to submit its position on this issue considering its stance that Section 19, Article VI of RA 9054 is unconstitutional. The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a

temporary measure pending the enactment by Congress of the "appropriate law." The Issues The petitions raise the following issues: I. In G.R. No. 177597: (A) Preliminarily (1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the constitutionality of COMELEC Resolution No. 7902; and (2) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597. (B) On the merits (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, is constitutional; and (2) if in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province. II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the first legislative district of Maguindanao (as "Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]"), despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City). The Ruling of the Court The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid. On the Preliminary Matters

The Writ of Prohibition is Appropriate to Test the Constitutionality of Election Laws, Rules and Regulations The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any tribunal, board, or officer exercising judicial or quasi-judicial functions."21 On the other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer, or person to perform an act "which the law specifically enjoins as a duty."22True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions.23Nor is there a law which specifically enjoins the COMELEC to exclude from canvassing the votes cast in Cotabato City for representative of "Shariff Kabunsuan Province with Cotabato City." These, however, do not justify the outright dismissal of the petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and we have long recognized this writ as proper for testing the constitutionality of election laws, rules, and regulations.24 Respondent Dilangalens Proclamation Does Not Moot the Petition There is also no merit in the claim that respondent Dilangalens proclamation as winner in the 14 May 2007 elections for representative of "Shariff Kabunsuan Province with Cotabato City" mooted this petition. This case does not concern respondent Dilangalens election. Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines whether the votes cast in Cotabato City for representative of the district of "Shariff Kabunsuan Province with Cotabato City" will be included in the canvassing of ballots. However, this incidental consequence is no reason for us not to proceed with the resolution of the novel issues raised here. The Courts ruling in these petitions affects not only the recently concluded elections but also all the other succeeding elections for the office in question, as well as the power of the ARMM Regional Assembly to create in the future additional provinces. On the Main Issues Whether the ARMM Regional Assembly Can Create the Province of Shariff Kabunsuan The creation of local government units is governed by Section 10, Article X of the Constitution, which provides:

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. Thus, the creation of any of the four local government units province, city, municipality or barangay must comply with three conditions. First, the creation of a local government unit must follow the criteria fixed in the Local Government Code. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected. There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction,25 subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, "only x x x an Act of Congress" can create provinces, cities or municipalities.261avvphi1 Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies.27 In the present case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conflicts with any provision of the Constitution. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, "Each city with a population of at least two hundred fifty

thousand, or each province, shall have at least one representative" in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, "Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x." Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the citys population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district. For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative. Legislative Districts are Created or Reapportioned Only by an Act of Congress Under the present Constitution, as well as in past 28 Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides: SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be

elected through a party-list system of registered national, regional, and sectoral parties or organizations. xxxx (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. (Emphasis supplied) Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress. In Montejo v. COMELEC,29 we held that the "power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws," and thus is vested exclusively in Congress. This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body. The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress. On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, "The Regional Assembly may exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x." Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the "next national elections" from the effectivity of the law.30 Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of Representatives, is a national official.31 It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it

can only create local or regional offices, respectively, and it can never create a national office. To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMMs territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assemblys legislative powers "[w]ithin its territorial jurisdiction x x x." The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that: Except as may be provided by national law, the existing legislative district, which includes Cotabato City as a part thereof, shall remain. (Emphasis supplied) However, a province cannot legally be created without a legislative district because the Constitution mandates that "each province shall have at least one representative." Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional. Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which provides: Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (Emphasis supplied) and Section 3 of the Ordinance appended to the Constitution, which states: Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located

shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied) serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As further support for her stance, petitioner invokes the statement in Felwa that "when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment." The contention has no merit. First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for "creati[ng] congressional districts without the apportionment provided in the Constitution." The Court answered in the negative, thus: The Constitution ordains: "The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise as far as practicable, contiguous and compact territory." Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province for "each province shall have at least one member" in the House of Representatives; or (b) by direct creation of several representative districts within a province. The requirements concerning the apportionment of representative districts and the territory thereof refer only to the second method of creation of representative districts, and do not

apply to those incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an Act of Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment. There is no constitutional limitation as to the time when, territory of, or other conditions under which a province may be created, except, perhaps, if the consequence thereof were to exceed the maximum of 120 representative districts prescribed in the Constitution, which is not the effect of the legislation under consideration. As a matter of fact, provinces have been created or subdivided into other provinces, with the consequent creation of additional representative districts, without complying with the aforementioned requirements.32 (Emphasis supplied) Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts "indirectly" through a special law enacted by Congress creating a province and (2) the creation of the legislative districts will not result in breaching the maximum number of legislative districts provided under the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were created by anational law enacted by Congress itself. Here, the new province was created merely by a regional law enacted by the ARMM Regional Assembly. What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from Congress power to reapportion legislative districts, but also from Congress power to create provinces which cannot be created without a legislative district. Thus, when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that "each province shall have at least one representative" in the House of Representatives. This does not detract from the constitutional principle that the power to create legislative districts belongs exclusively to Congress. It merely prevents any other legislative body, except Congress, from creating provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts. In short, only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only

Congress has the power to create, or trigger the creation of, a legislative district. Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that "[E]ach city with a population of at least two hundred fifty thousand x x x, shall have at least one representative." Second. Semas theory also undermines the composition and independence of the House of Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum population of 250,000.34 The following scenarios thus become distinct possibilities: (1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law provides otherwise); (2) The proportional representation in the House of Representatives based on one representative for at least every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and (3) Representatives from the ARMM provinces can become the majority in the House of Representatives through the ARMM Regional Assemblys continuous creation of provinces or cities within the ARMM. The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the absurdity of Semas position that the ARMM Regional Assembly can create provinces: Justice Carpio:

So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their own representatives [?] Atty. Vistan II:35 Yes, Your Honor, because the Constitution allows that. Justice Carpio: So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they can have thirty-five (35) new representatives in the House of Representatives without Congress agreeing to it, is that what you are saying? That can be done, under your theory[?] Atty. Vistan II: Yes, Your Honor, under the correct factual circumstances. Justice Carpio: Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x [only] one hundred thousand (100,000) [population], x x x, and they will each have one representative x x x to Congress without any national law, is that what you are saying? Atty. Vistan II: Without law passed by Congress, yes, Your Honor, that is what we are saying. xxxx Justice Carpio: So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives to the House of Representatives without a national law[,] that is legally possible, correct? Atty. Vistan II: Yes, Your Honor.36 (Emphasis supplied) Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy, 37 nor Congress in enacting RA 9054, envisioned or intended these disastrous

consequences that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this. The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the Constitution which states, "[A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least one Member," refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the actual membership of the House of Representatives, an increase that only Congress can decide. Incidentally, in the present 14th Congress, there are 21938 district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 partylist candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces. It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly provides that the legislative powers of regional assemblies are limited "[w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national laws, x x x." The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government is established "within the framework of the Constitution." This follows Section 15, Article X of the Constitution which mandates that the ARMM "shall be created x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and barangays does not involve the creation of

legislative districts. We leave the resolution of this issue to an appropriate case. In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void. Resolution No. 7902 Complies with the Constitution Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution. WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED. SEPARATE OPINION (Dissenting and Concurring)

TINGA, J.: I agree that the petitions should be denied, but on a wholly different basis from that offered by the majority. I cannot accede to the majoritys conclusion, burnished by reasoning most strained, that the Regional Assembly of the Autonomous Region of Muslim Mindanao (Regional Assembly) should be deprived of the power delegated to it by Congress to create provinces. With this ruling, the Court has dealt another severe blow to the cause of local autonomy. Our Constitution, in reflection of the sovereign wisdom of the people, has prescribed local government rule as a tool for national development and welfare. The majority is unfortunately unmindful of these considerations. The Regional Assembly and the government of the Autonomous Region of Muslim Mindanao exercised constituent functions in establishing the province of Shariff Kabunsuan and providing for its local government. The majority did not bother to hear their side in these petitions, which after all, never put in issue the constitutionality of the creation of the province. The people of Shariff Kabunsuan, by sovereign desire and constitutional design, ratified through a plebiscite the province named in honor of the revered figure who introduced Islam to Central Mindanao. The majority has annihilated the province with nary a word of comfort or concern for its citizens. Sadly, there will be no shelter for the Court from the impact of this decision, which unduly stretches the Constitution to deny the will of the duly elected members of the Regional Assembly, that of the constituents they represent, and most of all, that of the people of Shariff Kabunsuan. I. We are dealing with two consolidated petitions which essentially raise the same arguments, but were brought forth by two different parties laboring under different circumstances. The petitioner in G.R. No. 177597, Bai Sandra S.A. Sema, a congressional candidate in the 2007 legislative elections who posits that the newly-created province of Shariff Kabunsuan is entitled to its own exclusive legislative district. The petitioner in G.R. No. 178628, Perfecto F. Marquez, suing in his capacity as a taxpayer and a resident of Cotabato City,1 argues that with the creation of Shariff Kabunsuan, his home city cannot be conjoined with Shariff Kabunsuan to create just one legislative district for both territories. As narrated by the majority,2 four (4) days prior to the 14 May 2007 elections, respondent Commission on Elections (COMELEC)

promulgated Resolution No. 7902, whereby it resolved to maintain the composition of what had been the First District of Maguindanao, composed of Cotabato City, a chartered city, and several other municipalities, even though these municipalities formerly belonging to Maguindanao have since been constituted as part of the province of Shariff Kabunsuan, which was created by the Regional Assembly by virtue of Muslim Mindanao Autonomy Act No. 201 in August of 2006. Both petitioners challenge the notion of fusing Cotabato City, which is not a part of ARMM, with the ARMM municipalities which now constitute the new province of Shariff Kabunsuan, into one legislative district. To resolve that question on the merits, it is inevitable that the Court examine the validity of the creation of Shariff Kabunsuan in the first place, and the majority has fully adopted that approach. However, there are significant impediments that weigh down both petitioners, and supply the cogent reason for the more prudent approach which is to dismiss the petitions outright. It is clear that both petitioners rely on constitutional issues in support of their petitions as they posit that under the Constitution Shariff Kabunsuan is entitled to its own separate legislative district. It is cardinal that the Courts power of judicial review may be exercised in constitutional cases only if all the following requisites are complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.3 With respect to Sema, it is plainly evident, as argued by private respondent Rep. Didagen P. Dilangalen, that she is estopped from bringing forth the present petition. On 29 March 2007, she filed her Certificate of Candidacy before the COMELEC, declaring her candidacy a Member of the House of Representatives representing "the Province of Shariff Kabunsuan w/ Cotabato City."4 She recognized under oath that she was seeking election for a legislative district that encompassed both Shariff Kabunsuan and Cotabato City, and she should be consequently barred from disavowing the very district which she undertook to serve if elected. Sema appears to have campaigned for election in this conjoined district, and was accordingly defeated by Dilangalen, her

votes from both Shariff Kabunsuan and Cotabato City included in the tally. It would indeed be difficult to assess injury for purposes of locus standi on the part of Sema by reason of the assailed COMELEC Resolution, which after all, reaffirms the very legislative district whose seat in Congress she had sought to be elected to. Her standing to raise the present petition is materially affected by her express consent and active campaign for election from the legislative district which she now seeks to invalidate. A party challenging the constitutionality of a law, act or statute must show "not only that the law is invalid, but also that he or she has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement," that party has been or is about to be, denied some right or privilege to which he or she is lawfully entitled.5 Semas prior avowal that she was running for the Shariff Kabunsuan with Cotabato City legislative district, and her campaign for election to that district, belie the existence of injury on her part caused by the COMELEC resolution that affirmed that very legislative district. On the part of Marquez, he first raised his present claims through the petition in G.R. No. 179608, which was filed with this Court in July 2007, or more than two months after the May 2007 elections. As a result, could no longer ask that the holding of the said elections in the conjoined district be restrained, and instead seeks that new or special elections be conducted. As earlier noted, among the requisites for the Court to be able to exercise judicial review in constitutional cases is that the exercise of judicial review is pleaded at the earliest possible opportunity.6 Clearly, his petition was not timely filed at the earliest possible opportunity, which would have been at a point prior to the May 2007 elections. Worse, he filed his petition after the voters in the affected districts had already elected a candidate of their choosing, a sovereign act which he seeks to annul. Considering the grave implications of the step he seeks, as well as the fact that such recourse usually smacks of opportunism and bad faith, it is but proper for the Court to decline review unless all the established requisites for judicial review for constitutional cases have indeed been met. Marquez does not meet this Courts exacting standards. Moreover, Marquez does not have a valid cause of action before this Court. His prayer is to compel the COMELEC to provide for new congressional elections for Cotabato City.The relief sought does not

lie simply because Rep. Dilangalen, by virtue of his electoral victory, lawfully represents the City in addition to the Province of Shariff Kabunsuan. From another perspective, the COMELEC does not have the requisite power to call elections, as the same is part of the plenary legislative power. Only Congress, which was not impleaded as a party to Marquezs petition, has the power to set congressional elections only for Cotabato City, if ever. Even assuming that Congress was impleaded, it would be improper for this Court to compel Congress by judicial fiat to pass a law or resolution for the holding of such elections. In sum, Marquezs petition should be dismissed outright for having been filed out of time, for lack of cause of action, and for not impleading a real party-in-interest. II. One might argue that it is imperative for the Court to resolve the substantive issues, since the situation may emerge again. However, the exception in exercising judicial review if the case is capable of repetition yet evading review applies only if the case is "moot and academic,"7 and not when the petitioners lack the requisite standing, have no cause of action, and have failed to join a proper party, which is the case here. In addition, it is entirely possible that between now and the next elections, either Congress or the Regional Assembly would pass new legislation concerning the composition or status of Shariff Kabunsuan, thereby changing the legal complexion and factual milieu of the situation. If that occurs, the questions that will be facing the Court then should a challenge be mounted may very well be different from those currently befacing us. However, it is apparent that the ponente wishes to settle these cases on the merits. In doing so, he frames two issueswhether Congress can delegate to the Regional Assembly the power to create provinces; and whether the Regional Assembly has the power to create legislative districts. However, with due respect, the majoritys discussion makes quite an easy leap when it abruptly fuses these two issues. Worse, the majority fails to take into account certain fundamental constitutional principles which have immense bearing in these cases. The resulting analysis is incomplete and uninformed of the full constitutional milieu under which these petitions should be resolved. My own framework firstly considers two important principles which underlie the issues presented before usthe rule on delegation of powers, and the constitutionally-ordained paradigms of local

government and local autonomy. Without the influence of these principles, any resulting analysis of the two issues cast by the majority will be atomistic in nature. III. The laws we are presently impelled to interpret involve multiple instances of Congress delegating power to the Regional Assembly. Explicity, Rep. Act No. 9054 delegates to the Regional Assembly the power to create provinces and other local government units, though subject to certain specified limitations. The majority likewise asserts that through that mechanism, Congress has also delegated to the Regional Assembly the power to create legislative districts. The fundamental principles on delegation of powers bear review. The Constitution expressly vests legislative power in the Congress of the Philippines, consisting of a Senate and a House of Representatives.8 Traditionally, the delegation of Congress of its legislative powers had been frowned upon. "A logical corollary to the doctrine of separation of powers is the principle of nondelegation of powers, as expressed in the Latin maxim potestas delegata non delegare potest (what has been delegated cannot be delegated). This is based on the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another."9 However, the strict application of the non-delegation doctrine has, in recent times, been relaxed, if not minimized altogether, particularly in the context of regulatory jurisdiction of administrative agencies. In every industrialized nation, administrative agencies, which are generally part of the executive branch, have been granted considerable lawmaking power.10 "Given the volume and variety of interactions in today's society, it is doubtful if the legislature can promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to delegate to administrative bodies the principal agencies tasked to execute laws in their specialized fieldsthe authority to promulgate rules and regulations to implement a given statute and effectuate its policies."11 In the context of delegation of legislative powers to local governments, a noted authority on the subject has this to say:

The state legislative power that is, the exercise of the policymaking judgment and discretion on state matters that state constitutions vest and recognize in the legislature cannot be delegated to some other person or body but must rest with the legislature itself. Thus, the legislature cannot delegate to a commission the power to determine the form of government, powers and functions of proposed municipalities since these matters require legislative judgment. But the details of organization of its own government can be left to a municipality, limited only by general state law; and such basic state powers as the police power, taxing power, and power of eminent domain can be, and almost always are, delegated to local governments for their use for local purposes. The rule against delegation of state legislative authority is no barrier to the delegation of powers of local self government to local units. x x x12 Notwithstanding the exceptions that have been carved to the rule of non-delegation, it bears notice that while our Constitution broadly endows legislative powers to Congress it also specifically conditions the emergence of certain rights, duties and obligations upon the enactment of a law oriented towards such constitutional predicate. These include the prohibition of political dynasties as may be defined by law,13 the reasonable conditions prescribed by law relating to full public disclosure of all the States transactions involving public interest;14 the manner by which Philippine citizenship may be lost or reacquired;15 the date of regular elections for members of Congress;16 the manner of conduct of special elections to fill in congressional vacancies;17 the authorization of the President to exercise emergency powers;18 the system for initiative and referendum;19 the salaries of the President and VicePresident;20 the creation and allocation of jurisdiction of lower courts21 ; and on many other matters of grave import. May these specified functions be delegated by Congress to another body? These specific functions are non-delegable, for they are textually committed by the Constitution to Congress. Perhaps it is possible to segregate these particular functions to those which would, even absent constitutional definition, anyway fall within the plenary legislative power, and those which are not plenary in nature but were especially designated to Congress by the Constitution. Still, in either case, only Congress, and no other body, can carry out that function. As to those powers which would normally fall within the plenary legislative power, the Constitution has decided to doubly emphasize that it is the Congress which is so empowered to perform such tasks. With respect to the non-plenary functions assigned to Congress, it is clear that the assignment

implies the delegation by the Constitution to Congress of specific, wholly original functions. There shall be further discussion on this point in relation to the questions currently presented. Before we get there, I wish to emphasize a second constitutional principle, local governance and autonomy, that should likewise bear on our deliberations. IV. The 1987 Constitution ushered in a new era in local government rule for all citizens, and local autonomy rule for Muslim Mindanao and the Cordillera region. This new paradigm is crystallized under Article X of the Constitution. Section 2, Article X guarantees that the territorial and political subdivisions in the Philippines shall enjoy local autonomy. The guarantee of local autonomy is actualized through a local government code that delineates the structure and powers of local governments, and through constitutional measures that entitle local government units to generate their own revenue stream and assure the same to their fair share in the national internal revenue.22 Local government rule, in constitutional contemplation, is a live being that exists to counterbalance the rule of the national government, and is not a mere palliative established in the Constitution to soothe the people with the illusion of having a more direct say in their governance. By constitutional design, local government rule for the people of Muslim Mindanao and the Cordilleras is even more enhanced, as they are assured of their own autonomous regions. Section 15, Article X of the Constitution mandated that "[t]he shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics" Following the Constitution, Congress in 1989 passed Republic Act No. 6734, "An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao", leading to the creation of the ARMM. In 2001, Congress further strengthened the Organic Act with the passage of Rep. Act No. 9054, which among others, empowered the Assembly to create provinces. The Organic Acts possess a special status within Philippine laws. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite, and thus could not be amended by ordinary statutes without any plebiscite.23

In Disomangcop v. Datumanong,24 the Court explained at length the vital constitutional purposes of local autonomy: xxx According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it "is an indictment against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization." The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions. These cultures, as a matter of right, must be allowed to flourish. xxx Several commissioners echoed the pervasive sentiment in the plenary sessions in their own inimitable way. Thus, Commissioner Bias Ople referred to the recognition that the Muslim Mindanao and the Cordilleras "do not belong to the dominant national community" as the justification for conferring on them a "measure of legal selfsufficiency, meaning self-government, so that they will flourish politically, economically and culturally," with the hope that after achieving parity with the rest of the country they would "give up their own autonomous region in favor of joining the national mainstream." For his part, the Muslim delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework for nation-building. Finally, excerpts of the poignant plea of Commissioner Ponciano Bennagen deserve to be quoted verbatim: . . . They see regional autonomy as the answer to their centuries of struggle against oppression and exploitation. For so long, their names and identities have been debased. Their ancestral lands have been ransacked for their treasures, for their wealth. Their cultures have been defiled, their very lives threatened, and worse, extinguished, all in the name of national development; all in the name of public interest; all in the name of common good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the name of national security. These phrases have meant nothing to our indigenous communities, except for the violation of their human rights. xxx xxx xxx

Honorable Commissioners, we wish to impress upon you the gravity of the decision to be made by every single one of us in this

Commission. We have the overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic regional autonomy. We propose that we have a separate Article on the autonomous regions for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of prolonging the agony of their vigil and their struggle. This, too is a plea for national peace. Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of our responsibility to attain national unity and peace and to settle this problem and rectify past injustices, once and for all. The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. The Moros' struggle for self-determination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on. Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.25 Petitioner Sema points out that among the terms in the Final Peace Agreement between the Philippine Government and the Moro National Liberation Front was that amendments be introduced to the original Organic Act, including one which authorized the Assembly to "create, divide, merge, abolish or substantially alter boundaries of local government units in the area of autonomy in accordance with the criteria laid down by law subject to approval by a majority of the votes cast in a plebiscite called for the purpose in the political units affected."26 Indeed, it could hardly be argued that the challenged power of the Assembly was animated by nakedly selfish political purposes. It was, in fact, among the terms negotiated with care by the Philippine Government with the leading armed insurgency group in Muslim Mindanao towards the higher purpose of providing a permanent peace agreement in the strifetorn region. It does come with a measure of surprise and disappointment that the Solicitor General has reached a position that rejects the Final Peace Agreement negotiated by the Government and the MNLF.

Disomangcop further crystallizes the interplay between regional autonomy and national sovereignty, to the extent that the former is accommodated under the latter. Regional autonomy is the degree of self-determination exercised by the local government unit vis--vis the central government. In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community's internal decision-making processes and the management of collective matters by themselves. If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an end that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected its continuing validity is more easily perceived. Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government. The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs. In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the government and pave the way for the unhampered implementation of the development programs in the region. Again, even a glimpse of the deliberations of the Constitutional Commission could lend a sense of the urgency and the inexorable appeal of true decentralization:

MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only for the present but for our posterity. There is no harm in recognizing certain vital pragmatic needs for national peace and solidarity, and the writing of this Constitution just happens at a time when it is possible for this Commission to help the cause of peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity. . . . xxx xxx xxx

MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines that Mindanao autonomy will be granted to them as soon as possible, more or less, to dissuade these armed men from going outside while Mindanao will be under the control of the national government, let us establish an autonomous Mindanao within our effort and capacity to do so within the shortest possible time. This will be an answer to the Misuari clamor, not only for autonomy but for independence. xxx xxx xxx

A necessary prerequisite of autonomy is decentralization, which typically involves delegated power wherein a larger government chooses to delegate certain authority to more local governments.28 Decentralization of power involves an abdication of political power in the favor of local government units declared to be autonomous, which are free to chart their own destiny and shape their future with minimum intervention from central authorities.29What the Constitution contemplated with respect to the ARMM was political autonomy. As explained by Justice Cortes for the Court: It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was no express guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in the country [Villegas v. Subido, supra.] On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions [Art. X, sec. 18].30 Disomangcop further elaborates on autonomy as it relates to the ARMM: the import of political

MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of the Congress of the organic acts and their passage is that we live in abnormal times. In the case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war and peace. These are momentous issues in which the territorial integrity and the solidarity of this country are being put at stake, in a manner of speaking. We are writing a peace Constitution. We hope that the Article on Social Justice can contribute to a climate of peace so that any civil strife in the countryside can be more quickly and more justly resolved. We are providing for autonomous regions so that we give constitutional permanence to the just demands and grievances of our own fellow countrymen in the Cordilleras and in Mindanao. One hundred thousand lives were lost in that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed struggle as well as a peaceful and militant struggle. xxx xxx xxx

Rather than give opportunity to foreign bodies, no matter how sympathetic to the Philippines, to contribute to the settlement of this issue, I think the Constitutional Commission ought not to forego the opportunity to put the stamp of this Commission through definitive action on the settlement of the problems that have nagged us and our forefathers for so long.27

[B]y regional autonomy, the framers intended it to mean "meaningful and authentic regional autonomy." As articulated by a Muslim author, substantial and meaningful autonomy is "the kind of local self-government which allows the people of the region or area the power to determine what is best for their growth and development without undue interference or dictation from the central government." To this end, Section 16, Article X limits the power of the President over autonomous regions. In essence, the provision also curtails

the power of Congress over autonomous regions. Consequently, Congress will have to re-examine national laws and make sure that they reflect the Constitution's adherence to local autonomy. And in case of conflicts, the underlying spirit which should guide its resolution is the Constitution's desire for genuine local autonomy. The diminution of Congress' powers over autonomous regions was confirmed in Ganzon v. Court of Appeals[31],wherein this Court held that "the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from Congress and to break Congress' 'control' over local government affairs."32 Unfortunately, the majority gives short shrift to the considerations of local autonomy, even as such paradigm partakes of a constitutional mandate. If anything, these provisions should dissuade against a reflexive dismissal of the provisions of the Organic Acts. It should be emphasized that local autonomy cannot be in denigration of the Constitution. It is repeatedly emphasized within Article X that the grant of local autonomy and the subsequent exercise of powers by the autonomous government must remain within the confines of the Constitution. At the same time, if there is no constitutional bar against the exercise of the powers of government by the autonomous government in Muslim Mindanao, particularly by the Regional Assembly, then there is no basis to thwart the constitutional design by denying such powers to that body. Having laid down the essential constitutional predicates, I shall proceed to dwell on the core issues raised. May Congress delegate to the Regional Assembly the power to create provinces? Assuming that such delegation is not barred by the Constitution, may the exercise of such power by the Regional Assembly give rise to separate legislative districts for such provinces thus created?

very people who stand to become the constituents of the new putative province. May such power be delegated by Congress to a local legislative body such as the Regional Assembly? Certainly, nothing in the Constitution bars Congress from doing so. In fact, considering the constitutional mandate of local autonomy for Muslim Mindanao, it can be said that such delegation is in furtherance of the constitutional design. The only constitutional provision that concerns with the creation of provinces is Section 10, Article X, which reads: 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. Nothing in this provision specifically limits the power to create provinces, cities, municipalities or barangays to Congress alone. The provision does embody a significant limitation that the creation of these political subdivisions must be in accordance with the criteria established in the local government code, a law which is enacted by Congress. It would thus be proper to say that the Constitution limits the ability to set forth the standards for the creation of a province exclusively to Congress. But to say that the Constitution confines to Congress alone the power to establish the criteria for creating provinces is vastly different from saying that the Constitution confines to Congress alone the power to create provinces. There is nothing in the Constitution that supports the latter proposition. Section 10, Article X does not specifically designate Congress as the body with the power to create provinces. As earlier stated, the power to create these political subdivisions is part of the plenary legislative power, hence such power can be exercised by Congress even without need of specific constitutional assignation. At the same time, the absence of constitutional language committing Congress with the function of creating political subdivisions ultimately denotes that such legislative function may be delegated by Congress. In fact, the majority actually concedes that Congress, under its plenary legislative powers, "can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the

V. There should be little debate on the origins of the power to create provinces, which had existed as a political unit in the Philippines since the Spanish colonial period, and which all our Constitutions have recognized as a basic level of local governments. Ever since the emergence of our tripartite system of democratic government, the power to create provinces have always been legislative in character. They are created by the people through their representatives in Congress, subject to direct affirmation by the

Constitution."33 As is pointed out, such delegation is operationalized by the LGC itself, which confers to provincial boards and city and municipal councils, the general power to create barangays within their respective jurisdictions. The Constitution does not confine the exercise of such powers only to the national legislature, and indeed if that were the case, the power to create barangays as granted by the LGC to local legislative bodies would be unconstitutional Traditionally, it has been the national legislature which has exercised the power to create provinces. However, the 1987 Constitution ushered in a new era in devolved local government rule, and particularly, a regime of local autonomy for Muslim Mindanao and the Cordilleras. We recognized in Disomangcop v. Datumanong, thus: Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach. Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group.34 It bears reemphasizing that the Constitution also actualizes a preference for local government rule, and thusly provides: 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.35 Attuned with enhanced local government rule, Congress had, through Rep. Act No. 9054, taken the bold step of delegating to a local legislative assembly the power to create provinces, albeit prudently withholding any ability to create legislative districts as well. Section 19 of Rep. Act No. 9054 reads: Section 19. Creation, Division or Abolition of Provinces, Cities, Municipalities or Barangay. The Regional Assembly may create, divide, merge, abolish, or substantially alter boundaries of provinces, cities, municipalities, or barangays in accordance with the criteria laid down by the Republic Act No. 7160, the Local

Government Code of 1991, subject to the approval by the majority of the votes cast in the plebiscite in the political units directly affected. The Regional Assembly may prescribe standards lower than those mandated by Republic Act No. 7160, the Local Government Code of 1991, in the creation, division, merger, abolition, or alteration of the boundaries of provinces, cities, municipalities, or barangay. Provinces, cities, municipalities, or barangays created, divided, merged, or whose boundaries are altered without observing the standards prescribed by Republic Act No. 7160, the Local Government Code of 1991, shall not be entitled to any share of the taxes that are allotted to the local governments units under the provisions of the code. The financial requirements of the provinces, cities and municipalities, or barangays so created, divided, merged shall be provided by the Regional Assembly out of the general funds of the Regional Government. The holding of a plebiscite to determine the will of the majority of the voters of the areas affected by the creation, division, merger, or whose boundaries are being altered as required by Republic Act No. 7160, the Local Government Code of 1991, shall, however, be observed. Because this empowerment scheme is in line with a policy preferred by the Constitution, it becomes utterly necessary to pinpoint a specific constitutional prohibition that bars Congress from authorizing the Regional Assembly to create provinces. No such constitutional limitation exists, and it is not the province, duty or sensible recourse of this Court to nullify an act of Government in furtherance of a constitutional mandate and directly ratified by the affected people if nothing in the Constitution proscribes such act. The constitutionality of the delegated power of the Regional Assembly to create provinces is further affirmed by the provisions in the Constitution concerning the mandatory creation of autonomous regions in Muslim Mindanao, as found in Sections 15 to 21, Article X. The organic act enacted by Congress for the autonomous region is to define the basic structure of government.36 Section 20 specifically allows the organic act of autonomous regions to provide for legislative powers over, among others, administrative organization; creation of sources of revenues; economic, social and tourism development; and such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. The creation of provinces within the autonomous region precisely assists these

constitutional aims under Section 20, enhancing as it does the basic administration of government, the delivery of government services, and the promotion of the local economy. In addition, Section 17, Article X states that "[a]ll powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government". The original Organic Act for Muslim Mindanao did not grant to the regional government the power to create provinces, thus at that point, such power was properly exercised by the National Government. But the subsequent passage of Rep. Act No. 9054 granted to the Regional Assembly the power, function and responsibility to create provinces and other local government units which had been exercised by the National Government. The majority does not point to any specific constitutional prohibition barring Congress from delegating to the Regional Assembly the power to create provinces. It does cite though that Article 460 of the LGC provides that only by an Act of Congress may a province be created, divided, merged, abolished or its boundary substantially altered. However, Republic Act No. 9054, which was passed ten (10) years after the LGC, unequivocally granted to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Any argument that the LGC confines to Congress the creation of provinces is muted by the fact that ten years after the LGC was enacted by Congress, the same legislative body conferred on the Assembly that same power within its territorial jurisdiction, thus amending the LGC to the extent of accommodating these newlygranted powers to the Assembly. There actually is an obvious unconstitutional dimension to Section 19, albeit one which is not in point in this case. The provision states in part "[t]hat Regional Assembly may prescribe standards lower than those mandated by Republic Act No. 7160, the Local Government Code of 1991, in the creation, division, merger, abolition, or alteration of the boundaries of provinces, cities, municipalities, or barangays." That proviso is squarely inconsistent with Section 10, Article X, which accords to the LGC the sole criteria for the creation, division, merger, abolition or alteration of boundaries of local government units. Said proviso thus cannot receive recognition from this Court. It bears noting that there is no contention presented thus far that the creation of Shariff Kabunsuan was not in accordance with the criteria established in the LGC, thus this aspect of

unconstitutionality of Rep. Act No. 9054 may not be material to the petitions at bar. VI. The majority unfortunately asserts that Congress may not delegate to the Regional Assembly the power to create provinces, despite the absence of any constitutional bar in that respect. The reasons offered for such conclusion are actually the same reasons it submits why the Regional Assembly could not create legislative districts, as if the power to create provinces and the power to create legislative districts were one and the same. In contrast, I propose to pinpoint a specific constitutional provision that prohibits the Regional Assembly from creating, directly or indirectly, any legislative district without affecting that bodys delegated authority to create provinces. Let us review this issue as presented before us. Notably, Republic Act No. 9054 does not empower the Regional Assembly to create legislative districts, and MMA Act No. 201, which created Shariff Kabunsuan, specifically disavows the creation of a new district for that province and maintains the old legislative district shared with Cotabato City. It is the thesis though of the petitioners that following Felwa v. Salas,37 the creation of the new province ipso facto established as well an exclusive legislative district for Shariff Kabunsuan, "by operation of the Constitution." How exactly does a legislative district come into being? In theory, Congress does not have any express or plenary legislative power to create legislative districts, except by reapportionment. Under the Constitution, such reapportionment occurs within three years following the return of the census,38 but this Court has likewise recognized that reapportionment can also be made through a special law, such as in the charter of a new city. 39Still, even in exercising this limited power through the constitutionally mandated reapportionment, Congress cannot substitute its own discretion for the standards set forth in Section 5, Article VI. And should general reapportionment made by Congress violate the parameters set forth by the Constitution, such act may be invalidated by the Court, as it did in Macias v. COMELEC.40 There is another constitutional provision which is of critical importance in considering limitations in the creation of legislative districts. Section 5(1), Article VI states that "[t]he House of Representatives shall be composed of not more than two hundred fifty members, unless otherwise fixed by law". The provision

textually commits that only through a law may the numerical composition of Congress may be increased or reduced. The Court has previously recognized that such law increasing the membership of the House of Representatives need not be one specifically devoted for that purpose alone, but it may be one that creates a province or charters a city with a population of more than 250,000. In Tobias v. Abalos,41 the Court pronounced that the law converting Mandaluyong into a city could likewise serve the purpose of increasing the composition of the House of Representatives: As to the contention that the assailed law violates the present limit on the number of representatives as set forth in the Constitution, a reading of the applicable provision, Article VI, Section 5 (1), as aforequoted, shows that the present limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by R.A. No. 7675 is not unconstitutional.42 This point was reemphasized by the Court in Mariano v. COMELEC:43 These issues have been laid to rest in the recent case of Tobias v. Abalos. In said case, we ruled that reapportionment of legislative districts may be made through a special law, such as in the charter of a new city. The Constitution clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment law. This is exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district.44 From these cases, it is evident that a law creating the province of Shariff Kabunsuan may likewise serve the purpose of increasing the composition of the House of Representatives. In addition, Congress generally has the power to delegate the power of creating local government units to the appropriate local legislative assemblies. The critical question now is thus whether Congress may delegate to local legislative assemblies the power to increase the composition of the House of Representatives? The answer is no.

I have already pointed out that when the Constitution specifically designates a particular function to Congress, only Congress may exercise such function, as the same is non-delegable. The power to increase the composition of the House of Representatives is restricted by the Constitution to a law passed by Congress, which may not delegate such law-making power to the Regional Assembly. If we were to rule that Congress may delegate the power to increase the composition of the House of Representatives, there would be no impediment for us to similarly rule that those other specific functions tasked by the Constitution to Congress may be delegated as well. To repeat, these include gravely important functions as the enactment of a law defining political dynasties; the enactment of reasonable conditions relating to full public disclosure of all the States transactions involving public interest; the manner by which Philippine citizenship may be lost or reacquired; the date of regular elections for members of Congress; the provision for the manner of conduct of special elections to fill in congressional vacancies; the authorization of the President to exercise emergency powers; the prescription of a system for initiative and referendum; the salaries of the President and Vice-President; and the creation and allocation of jurisdiction of lower courts. Considering that all these matters, including the composition of the House of Representatives, are of national interest, it is but constitutionally proper that only a national legislature has the competence to exercise these powers. And the Constitution does textually commit to Congress alone the power to increase the membership of the House of Representatives. Accordingly, the petitioners position cannot be sustained, as Shariff Kabunsuan cannot acquire its own legislative district unless Congress itself accedes to the passage of a law that establishes the same. The contrary position is in denigration of the Constitution, which limits to Congress alone the non-delegable power to fix or increase the composition of the House of Representatives. For that, I concur with the result of the majority. Felwa cannot apply to these petitions. Its pronouncement that the creation of a province automatically leads to the creation of a legislative district "by operation of the Constitution" can only apply when the province is created by Congress itself, since there is no other constitutional impediment to the emergence of the legislative district. However, in cases where it is a body other than Congress which has created, although validly, the legislative district, the Constitution itself bars the emergence of an accompanying legislative district, as this will result in an increase in the

composition of the House of Representatives which can only be accomplished through a law passed by Congress. VII. Even as Section 19 of Rep. Act No. 9054 constitutionally authorizes the Regional Assembly to create provinces, there are legal limitations that constrict the discretion of that body to exercise such power. I had earlier identified as unconstitutional the discretion of the Regional Assembly to create local government units based on a lower standard than that prescribed under the LGC. Another clear limitation is that the creation of provinces cannot be authorized without the ratification through a plebiscite by the people affected by such act, a requirement imposed by the Organic Act itself and by Section 10, Article X of the Constitution. The majority itself had raised an alarmist tone that allowing the Assembly to create provinces would not lead to the unholy spectacle of whimsical provinces intended as personal fiefdoms and created irrespective of size, shape and sense. In fact, allowing the Regional Assembly to create provinces will not lead to hundreds or thousands, or even tens or dozens of new provinces. Any new province will have to meet the same criteria set forth by the LGC for the creation of provinces. To stress how implausible the scenario of dozens-hundredthousands of ARMM provinces actually is, it bears reviewing what exactly is the criteria set forth under the LGC for the creation of provinces. An Assembly-created province, just as with any other putative province, following Section 461 of the LGC, must possess the following requisites: (a) an average annual income, as certified by the Department of Finance, of not less than Php20,000,000.00, such income including the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income; (b) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau (excepting when comprised of two (2) or more islands or when separated by a chartered city or cities which do not contribute to the income of the province), or a population of not less than 250,000 inhabitants as certified by the National Statistics Office; (c) that the creation of the province 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 under the Code. These standards, which should bear upon the Assembly, would preclude the emergence of dozens, hundreds or

thousands of provinces within the relatively confined spaces of the present Autonomous Region of Muslim Mindanao. IX. The concerns raised by the majority on how allowing the Assembly to create provinces would affect the composition of the national Congress are valid issues, yet the approach it adopts is to treat autonomy as invisible and inconsequential, instead of the countervailing constitutional principle that it actually is. It is an approach that will exacerbate political and regional tensions within Mindanao, especially since it shuns the terms of the negotiated peace. This decision today, sad to say, is a decisive step backwards from the previous rulings of this Court that have been supportive of the aims of regional autonomy. Except for the result, which I join, I respectfully dissent.

EN BANC [G.R. No. 183591, October 14, 2008] THE PROVINCE OF NORTH COTABATO, DULY REPRESENTED BY GOVERNOR JESUS SACDALAN AND/OR VICE-GOVERNOR EMMANUEL PIOL, FOR AND IN HIS OWN BEHALF, PETITIONERS, VS. THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), REPRESENTED BY SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN AND/OR GEN. HERMOGENES ESPERON, JR., THE LATTER IN HIS CAPACITY AS THE PRESENT AND DULYAPPOINTED PRESIDENTIAL ADVISER ON THE PEACE PROCESS (OPAPP) OR THE SO-CALLED OFFICE OF THE PRESIDENTIAL ADVISER ON THE PEACE PROCESS,RESPONDENTS. G.R. NO. 183752 CITY GOVERNMENT OF ZAMBOANGA, AS REPRESENTED BY HON. CELSO L. LOBREGAT, CITY MAYOR OF ZAMBOANGA, AND IN HIS PERSONAL CAPACITY AS RESIDENT OF THE CITY OF ZAMBOANGA, REP. MA. ISABELLE G. CLIMACO, DISTRICT 1, AND REP. ERICO BASILIO A. FABIAN, DISTRICT 2, CITY OF ZAMBOANGA, PETITIONERS, VS. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), AS REPRESENTED BY RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN AND HERMOGENES ESPERON, IN HIS CAPACITY AS THE PRESIDENTIAL ADVISER ON PEACE PROCESS, RESPONDENTS. G.R. NO. 183893 THE CITY OF ILIGAN, DULY REPRESENTED BY CITY MAYOR LAWRENCE LLUCH CRUZ, PETITIONER, VS. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), REPRESENTED BY SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., IN HIS CAPACITY AS THE PRESENT AND DULY APPOINTED PRESIDENTIAL ADVISER ON THE PEACE PROCESS; AND/OR SEC. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY. RESPONDENTS. G.R. NO. 183951 THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, AS REPRESENTED BY HON. ROLANDO E. YEBES, IN HIS CAPACITY AS PROVINCIAL GOVERNOR, HON. FRANCIS H. OLVIS, IN HIS CAPACITY AS VICE-GOVERNOR AND PRESIDING OFFICER OF THE SANGGUNIANG PANLALAWIGAN, HON. CECILIA JALOSJOS CARREON,

CONGRESSWOMAN, 1ST CONGRESSIONAL DISTRICT, HON. CESAR G. JALOSJOS, CONGRESSMAN, 3RD CONGRESSIONAL DISTRICT, AND MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF THE PROVINCE OF ZAMBOANGA DEL NORTE, NAMELY, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON AND HON. LUZVIMINDA E. TORRINO, PETITIONERS, VS. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], AS REPRESENTED BY HON. RODOLFO C. GARCIA AND HON. HERMOGENES ESPERON, IN HIS CAPACITY AS THE PRESIDENTIAL ADVISER OF PEACE PROCESS, RESPONDENTS. G.R. NO. 183962 ERNESTO M. MACEDA, JEJOMAR C. BINAY, AND AQUILINO L. PIMENTEL III, PETITIONERS, VS. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, REPRESENTED BY ITS CHAIRMAN RODOLFO C. GARCIA, AND THE MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, REPRESENTED BY ITS CHAIRMAN MOHAGHER IQBAL, RESPONDENTS. FRANKLIN M. DRILON AND ADEL ABBAS TAMANO, PETITIONERS-IN-INTERVENTION. SEN. MANUEL A. ROXAS, PETITIONERS-IN-INTERVENTION. MUNICIPALITY OF LINAMON DULY REPRESENTED BY ITS MUNICIPAL MAYOR NOEL N. DEANO, PETITIONERS-ININTERVENTION, THE CITY OF ISABELA, BASILAN PROVINCE, REPRESENTED BY MAYOR CHERRYLYN P. SANTOS-AKBAR, PETITIONERS-ININTERVENTION. THE PROVINCE OF SULTAN KUDARAT, REP. BY HON. SUHARTO T. MANGUDADATU, IN HIS CAPACITY AS PROVINCIAL GOVERNOR AND A RESIDENT OF THE PROVINCE OF SULTAN KUDARAT, PETITIONER-IN-INTERVENTION.

RUY ELIAS LOPEZ, FOR AND IN HIS OWN BEHALF AND ON BEHALF OF INDIGENOUS PEOPLES IN MINDANAO NOT BELONGING TO THE MILF, PETITIONER-IN-INTERVENTION. CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG AND RICHALEX G. JAGMIS, AS CITIZENS AND RESIDENTS OF PALAWAN, PETITIONERS-ININTERVENTION. MARINO RIDAO AND KISIN BUXANI, PETITIONERS-ININTERVENTION. MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), RESPONDENT-IN-INTERVENTION. MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), RESPONDENT-IN-INTERVENTION. DECISION CARPIO MORALES, J.: Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While the facts surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively. I. FACTUAL ANTECEDENTS OF THE PETITIONS On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984

when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.[1] The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.[2] Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada declared and carried out an "all-out-war" against the MILF. When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions.[5] Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral DomainAspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting." A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.[6] In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOAAD in its final form, which, as mentioned, was set to be signed last August 5, 2008. II. Statement of the proceedings Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962. Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and ViceGovernor Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.[9] Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.[10] This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOAAD be declared null and void. By Resolution of August 4, 2008, the Court issued a Temporary Restraining Ordercommanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.[13] The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,[14] to which she complied.[15] Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners hereinadditionally implead Executive Secretary Eduardo Ermita as respondent. The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,[19] docketed asG.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,[20] docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal. Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-inIntervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention. By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:

Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft; 2. Whether the constitutionality and the legality of the MOA is ripe for adjudication; 3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to

information on matters of public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;] If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; b) to revise or amend the Constitution and existing laws to conform to the MOA; c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;] If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines;

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and (ii) insofar as the prohibition aspect involving the Local

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any

prior valid commitments of the Government of the Republic of the Philippines.[24] The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on time. III. Overview of the MOA-AD As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA. The MOA-AD identifies the Parties to it as the GRP and the MILF. Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos. The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples Rights Act (IPRA),[26] and several international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others. The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of darul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device." During the height of the Muslim Empire, early Muslim jurists tended

to see the world through a simple dichotomy: there was the dar-ulIslam (the Abode of Islam) anddar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.[27] This way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international community of nations. As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division of the world into dar-ul-Islam and dar-ulharb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ulsulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.[28] It thus appears that the "compact rights entrenchment" emanating from the regime ofdar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government - the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD]."[29] The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body. The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance. A. Concepts and Principles This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as `Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu

archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.[30] Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros" as traditionally understood even by Muslims,[31] but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain doesnot form part of the public domain.[33] The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the modern sense.[34] The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.[35] The MOA-AD goes on to describe the Bangsamoro people as "the `First Nation' with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations." The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually described collectively by the plural "First Nations."[36] To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive entitlement to that

designation - departs from the Canadian usage of the term. The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.[37] B. Territory The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
[38]

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.[39] Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.[40] Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement the Comprehensive Compact.[41] The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;[42] that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and thatwithin these territorial waters, the BJE and the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.[43] Notably, the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.[44] The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.[45] There is no similar provision on the sharng of minerals and allowed activities with respect to theinternal waters of the BJE. C. RESOURCES The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements.[46] The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.[47] With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.[48] The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.[49] The MOA-AD provides that legitimate grievances of the

Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.[50] The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instrumentsgranted by the Philippine Government, including those issued by the present ARMM.[51] D. Governance The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The MOAAD explicitly provides that the participation of the third party shall not in any way affect the status of the relationship between the Central Government and the BJE.[52] The "associative" relationship between the Central Government and the BJE The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision. The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and

banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact. As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.[53] In addition, the signature page of the MOAAD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008. Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY. IV. PROCEDURAL ISSUES A. Ripeness The power of judicial review is limited to actual cases or controversies.[54] Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.[55] The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.
[56]

act or treaty only when a proper case between opposing parties is submitted for judicial determination.[58] Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.[59] For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture,[60] and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action.[61] He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.[62] The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning that The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. x x x xxxx In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOAAD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied) The Solicitor General cites[63] the following provisions of the MOAAD: TERRITORY xxxx

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.[57] The Court can decide the constitutionality of an

2. Toward this end, the Parties enter into the following stipulations: xxxx

present controversy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held: x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. xxxx By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.[66] In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held that the challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on its face.[68] That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,[69]decided in 1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision's consequences.[70] The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.[72] Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled. [73] Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.[74]

d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOAAD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD. xxxx GOVERNANCE xxxx

7. The Parties agree that mechanisms and modalities for the

actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.[64](Underscoring supplied) The Solicitor General's arguments fail to persuade. Concrete acts under the MOA-AD are not necessary to render the

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.[75] The said executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."[76] The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3. Furthermore, the petitions allege that the provisions of the MOAAD violate the Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later. As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudicationexists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.[77] B. Locus Standi 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."[78] 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.[79] When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[80] When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.[81] For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.[82] The Court retains discretion whether or not to allow a taxpayer's suit.[83] In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.[84] An organization may be granted standing to assert the rights of its members,[85] but the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.
[86]

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs.
[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention,[88] such as a legal interest in the matter in litigation, or in the success of either of the parties. In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo, [89] where technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in

view of their seriousness, novelty and weight as precedents.[90] The Court's forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights. In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure.[91] In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591)Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-ininterventionProvince of Sultan Kudarat, City of Isabela and Municipality of Linamon havelocus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt. In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them standing. Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes them with added basis for their personality to intervene in these petitions. With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be

informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor. With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rddistrict of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers;Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand. Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a nongovernment organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing. B. Mootness Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."[92] In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.[93] In David v. Macapagal-Arroyo,[94] this Court held that the "moot and academic" principle not being a magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution;[95] (b) the situation is of exceptional character and paramount public interest is involved;[96] (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;[97]and (d) the case is capable of repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where there is avoluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.[99] The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101] where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding. Petitions not mooted Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE. In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD, [102] the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding. Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity. Respondents cite Suplico v. NEDA, et al.[103] where the Court did not "pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole." The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relationbetween two parties--the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy. The MOA-AD is part of a series of agreements In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002. Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement 2001. Need to formulate principles-guidelines Surely, the present MOA-AD can be renegotiated or another one

will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional and equitable because that is the only way that longlasting peace can be assured," it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain. Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated thatthe doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked. The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the petitions. Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases.[106] There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form. It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz: 1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD? 2. Do the contents of the MOA-AD violate the Constitution and the laws? On the first Substantive issue Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.[107] As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to examine and inspect public records, a right which was eventually accorded constitutional status. The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right.[109] In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political significance. x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-

making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x[111] In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation[112] so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.[113] The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern[114] faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.[115] In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,[116] the need for adequate notice to the public of the various laws,[117] the civil service eligibility of a public employee,[118] the proper management of GSIS funds allegedly used to grant loans to public officials,[119] the recovery of the Marcoses' alleged ill-gotten wealth, [120] and the identity of party-list nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled: x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction. " Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for

the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest."[122](Emphasis and italics in the original) Intended as a "splendid symmetry"[123] to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.[124] The policy of full public disclosure enunciated in above-quoted Section 28complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.[125] The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy. [126] These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.[127] Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose: MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. OPLE. I expect it to influence the climate of public ethics

immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer.[128] The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening. MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law" MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest? MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.[129] (Emphasis supplied) Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader[130] right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law.Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the

people's will.[131]Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms. MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms. MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways. xxxx MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence? I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA in the making.[132] (Emphasis supplied) The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.[133] The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation. One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community."[134]Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations on both national and local

levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."[135] Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation."[136] Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process."[137] E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives."[138] In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. PAPP Esperon committed grave abuse of discretion The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President.[139] Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward

token provisos that border on classic lip service.[140] It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or before the government proffers its definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue. AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam. Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions"[142] is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy: Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.[143] (Italics and underscoring supplied) In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are critical to the environment and human ecology

including those that may call for the eviction of a particular group of people residing in the locality where these will be implemented. [145] The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,[146] which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clearcut mechanisms ordained in said Act,[148]which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOAAD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following section. Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.[149] ON THE SECOND SUBSTANTIVE ISSUE With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. Respondents have admitted as much in the

oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how The MOA-AD is inconsistent with the Constitution and laws as presently worded. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied) The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may

be brought to bear in understanding the use of the term "associative" in the MOA-AD. Keitner and Reisman state that [a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x[150] (Emphasis and underscoring supplied) For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.administered Trust Territory of the Pacific Islands,[151] are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes. It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association

consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.[152] In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence.Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.[153] Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD's

provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X: SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines . The BJE is a far more powerful entity than the autonomous region recognized in the Constitution It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed,BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,[154] namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in

a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied) As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE. The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision defines the powers of autonomous regions as follows: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied) Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treatymaking power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary[155] instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations.As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied) Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally

been a preparation for independence, is certainly not conducive to national unity. Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054[156] or the Organic Act of the ARMM, and the IPRA.[157] Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states: 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who arenatives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied) This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows: "As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous region who are: (a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and (b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions." Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations

in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region." Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof: SECTION 52. Delineation Process. -- The identification and delineation of ancestral domains shall be done in accordance with the following procedures: xxxx b) Petition for Delineation. -- The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs; c) Delineation Proper. -- The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned; d) Proof Required. -- Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs customs and traditions; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs; 5) Survey plans and sketch maps;

6) Anthropological data; 7) Genealogical surveys; 8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10)Write-ups of names and places derived from the native dialect of the community. e) Preparation of Maps. -- On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. -- A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. -- A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available; h) Endorsement to NCIP. -- Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and

verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below. xxxx To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158] held that the Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals. International law has long recognized the right to selfdetermination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC[160] had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond `convention' and is considered a general principle of international law." Among the conventions referred to are the International Covenant on Civil and Political Rights[161] and the International Covenant on Economic, Social and Cultural Rights[162] which state, in Article 1 of both covenants, that all peoples, by virtue of the right of selfdetermination, "freely determine their political status and freely

pursue their economic, social, and cultural development." The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive: "(ii) Scope of the Right to Self-determination 126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled throughinternal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. (Emphasis added) 127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. x x x x (Emphasis, italics and underscoring supplied) The Canadian Court went on to discuss the exceptional cases in which the right toexternal self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less

definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal selfdetermination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.[163] There, Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows: x x x [I]n the absence of express provisions in international treaties,the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be

attached, nor by any other State. (Emphasis and underscoring supplied) The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself - a right which sovereign nations generally have with respect to their own populations. Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest.[164]Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or secession from those states under international law,[165] but they do have rights amounting to what was discussed above as the right to internal self-determination. In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of

Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit: Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self-determination, havethe right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination."[166] The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder: Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

2. States shall provide effective mechanisms for

prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities. Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed by police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as

implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouragingany action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience: 7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution. Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for

independence, or worse, an implicit acknowledgment of an independent status already prevailing. Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as discussed below. The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations. It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,[167] states: SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.

This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments. x x x x (Emphasis supplied) The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The

E.O. authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments. The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a). The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to conduct peace negotiations. That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,[168] in issue was the authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus: "In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's . . . unstated residual powers which are implied from the grant of executive power and which arenecessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr.

Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power. Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied) Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commanderin-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.[169] As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as farreaching as a fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit: x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies. The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.[170] In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the

typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them tonew constitutional structures addressing governance, elections, and legal and human rights institutions.[171] In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions[172] is the framers' intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari. MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is:since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao . This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.[173] (Emphasis supplied) The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side. Justice Teehankee's dissent,[175] in particular, bears noting. While he disagreed that the President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: "Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has

been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis."[176] (Emphasis supplied) From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty. Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative. These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177] "The Lambino Group claims that their initiative is the `people's voice.' However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that `ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their `people's' initiative is an `unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of `people's voice' or `sovereign will' in the present initiative." It will be observed that the President has authority, as stated in her oath of office,[178] only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed

amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act. The foregoing discussion focused on the President's authority to proposeconstitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the President.[179] The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact." Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there could be no derogation. What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework. Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as unconstitutional. A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement between the MNLF and the GRP is most instructive. As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a threeyear transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM. The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law." Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the

ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. The Decision on Challenge to Jurisdiction: Lom Accord Amnesty[180] (the Lom Accord case) of the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of the Togolese Republic, the Economic Community of West African States, and the UN. On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996. Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the RUF with respect to anything done by them in pursuit of their objectives as members of that organization since the conflict began. In the Lom Accord case, the Defence argued that the Accord created aninternationally binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international organizations in the finalization of that agreement. The Special

Court, however, rejected this argument, ruling that the Lome Accord is not a treatyand that it can only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction. "3 In regard to the nature of a negotiated settlement of an internal 7. armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement.

42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lom Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lom Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lom Agreement cannot be characterised as an international instrument.x x x" (Emphasis, italics and underscoring supplied) Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France, [181] also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lom Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes.

xxxx In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France refused to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.[182] Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective. Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz: 43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.

51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied) As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances. The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso. Unlike in the Nuclear Tests Case, the ICJ held that the statement of

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit: 40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had `conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests` (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied) Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the

agreement is internationalized so as to create obligations in international law. Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States. In one important respect, the circumstances surrounding the MOAAD are closer to that of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law. The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of

peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.[184] Respondents, however, may not preempt it in that decision. SUMMARY The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid

symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional , for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to

authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution. SO ORDERED. Puno, C.J., Please see separate concurring opinion. Quisumbing, J., concur. Ynares-Santiago, J., see separate concurring opinion & concur with separate opinion of C.J. Puno. Carpio, J., see concurring opinion. Austria-Martinez, J., also concur were CJ's separate opinion. Corona, J., share the dissent of Mr. Justice Tinga. Azcuna, J., concur in a separate opinion. Tinga, J., dissent from the result. See separate opinion. Chico-Nazario, Velasco, Jr., Nachura, and Brion, JJ., Pls. see dissenting opinion. Reyes, J., certify that J. Reyes filed a separate opinion concurring with the majority. Leonardo-De Castro, J., concurring and Please see dissenting opinion. SEPARATE CONCURRING OPINION PUNO, C.J.: It is the duty of the government to seek a just, comprehensive and enduring peace with any rebel group but the search for peace must always be in accord with the Constitution. Any search for peace

that undercuts the Constitution must be struck down. Peace in breach of the Constitution is worse than worthless.

Libya. It bore its first fruit when on January 20, 1977, the parties signed the Tripoli Agreement in Zamboanga City in the presence of the OIC Representative. President Marcos immediately implemented the Tripoli Agreement. He issued Presidential Proclamation No. 1628, "Declaring Autonomy in Southern Philippines." A plebiscite was conducted in the provinces covered under the Tripoli Agreement to determine the will of the people thereat. Further, the legislature enacted Batasang Pambansa Blg. 20, "Providing for the Organization of Sangguniang Pampook (Regional Legislative Assembly) in Each of Regions IX and XII." President Marcos then ordered the creation of Autonomous Region IX and XII. In the meanwhile, the MNLF continued enhancing its international status. It was accorded the status of an observer in Tripoli, Libya during the 8th ICFM. In the 15thICFM at Sana'a, Yemen, in 1984, the MNLF's status was further elevated from a mere `legitimate representative' to `sole legitimate representative' of the Bangsamoro people.[6] In April 1977, the peace talks between the Government of the Republic of the Philippines (GRP) and MNLF Talks collapsed. Schism split the MNLF leadership. The irreconcilable differences between Nur Misuari and Hashim Salamat led to the formation of the Moro Islamic Liberation Front (MILF), headed by Hashim Salamat. Thus, the Maguindanao-led MILF, parted ways with the Tausug-led MNLF. In 1986, the People Power Revolution catapulted Corazon C. Aquino to the Presidency. Forthwith, she ordered the peace talks with the MNLF to resume. The 1987 Constitution was ratified by the people. It provided for the creation of the Autonomous Region of Muslim Mindanao through an act of Congress. But again the talks with the MNLF floundered in May 1987.[7] Be that as it may, it was during President Aquino's governance that a culture of peace negotiations with the rebellious MNLF and MILF was cultivated.[8] Thus, the Autonomous Region of Muslim Mindanao (ARMM) was created through Republic Act No. 6734. The law took effect on August 1, 1989. Then came the presidency of President Fidel V. Ramos. He issued on September 15, 1993, Executive Order No., 125 (E.O. 125) which provided for a comprehensive, integrated and holistic peace process with the Muslim rebels. E.O. 125 created the Office of the Presidential Adviser on the Peace Process to give momentum to the

I. Historical Roots A historical perspective of our Muslim problem is helpful. From time immemorial, an enduring peace with our Muslim brothers and sisters in Mindanao has eluded our grasp. Our Muslim problem exploded in March of 1968 when Muslim trainees were massacred by army officers at Corregidor. About 180 Muslim trainees had been recruited in the previous year as a part of a covert force namedJabidah,[1]allegedly formed to wrest away Sabah from Malaysia. The trainees were massacred when they reportedly protested their unbearable training and demanded the return to their home.[2] The Jabidah Massacre fomented the formation of Muslim groups clamoring for a separate Islamic state. One of these groups was the Muslim Independence Movement (MIM), founded by the then Governor of Cotabato, Datu Udtog Matalam.[3]Another was the Nurul Islam, led by Hashim Salamat. On September 21, 1972 Martial Law was declared by President Ferdinand E. Marcos. Among the reasons cited to justify martial law were the armed conflict between Muslims and Christians and the Muslim secessionist movement in the Southern Philippines.[4] The imposition of martial law drove some of the Muslim secessionist movements to the underground. One of them was the Moro National Liberation Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot to prominence, when the Organization of Islamic Conference (OIC) officially gave it recognition. During the 5thICFM, they strongly urged "the Philippines Government to find a political and peaceful solution through negotiation with Muslim leaders, particularly with representatives of the MNLF in order to arrive at a just solution to the plight of the Filipino Muslims within the framework of national sovereignty and territorial integrity of the Philippines"; and recognized "the problem as an internal problem with the Philippine Government to ensure the safety of the Filipino Muslims and the preservation of their liberties in accordance with the Universal Declaration of Human Rights."[5] In December 1976, the Philippine government and the MNLF under the auspices of the OIC started their peace negotiation in Tripoli,

peace talks with the MNLF. In 1996, as the GRP-MNLF peace negotiations were successfully winding down, the government prepared to deal with the MILF problem. Formal peace talks started on January of 1997, towards the end of the Ramos administration. The Buldon Ceasefire Agreement was signed in July 1997[9] but time ran out for the negotiations to be completed. President Joseph Estrada continued the peace talks with the MILF. The talks, however, were limited to cessation of hostilities and did not gain any headway. President Estrada gave both sides until December 1999 to finish the peace process.[10] They did not meet the deadline. The year 2000 saw the escalation of acts of violence and the threats to the lives and security of civilians in Southern Mindanao. President Estrada then declared an "all-out war" against the MILF.[11] He bowed out of office with the "war" unfinished. Thereafter, President Gloria Macapagal Arroyo assumed office. Peace negotiations with the MILF were immediately set for resumption. Executive Order No. 3, was issued "Defining Policy and Administrative Structure: For Government's Comprehensive Peace Efforts." On March 24, 2001, a General Framework for the Resumption of Peace Talks between the GRP and the MILF was signed. Republic Act No. 9054[12] was also enacted on March 31, 2001 and took effect on August 14, 2001 to strengthen and expand the Autonomous Region of Muslim Mindanao. Through the Organic Act of 2001, six municipalities in Lanao del Norte voted for inclusion in the ARMM. On June 22, 2001, the ancestral domain aspect of the GRP-MILF Tripoli Agreement was signed in Libya. Several rounds of exploratory talks with the MILF followed. Unfortunately, on April 2, 2003, Davao was twice bombed. Again, the peace talks were cancelled and fighting with the MILF resumed. On July 19, 2003 the GRP and the MILF agreed on "mutual cessation of hostilities" and the parties returned to the bargaining table. The parties discussed the problem of ancestral domain, divided into four strands: concept, territory, resources, and governance. On February 7, 2006, the 10th round of Exploratory Talks between the GRP and the MILF ended. The parties issued a joint statement of the consensus points of the Ancestral Domain aspect of GRPMILF Tripoli Agreement on Peace of June 22, 2001. The Joint Statement provides that: "Among the consensus points reached were: Joint determination of the scope of the Bangsamoro homeland based on the technical maps and data submitted by both sides; Measures to address the legitimate grievances of the Bangsamoro people arising from the unjust dispossession and/or marginalization; Bangsamoro people's right to utilize and develop their ancestral domain and ancestral lands; Economic cooperation arrangements for the benefit of the entire Bangsamoro people." On July 27, 2008, a Joint Statement on the Memorandum of Agreement on Ancestral Domain (MOA-AD) was signed by Chairperson Rodolfo C. Garcia on behalf of the GRP Peace Panel, and Mohagher Iqbal on behalf of the MILF Panel. In the Joint Statement, it was declared that the final draft of the MOA-AD has already beeninitialed. It was announced that "both sides reached a consensus to initial the final draft pending its official signing by the Chairmen of the two peace panels in early August 2008, in Putrajaya, Malaysia."[13] The Joint Statement triggered the filing of the petitions at bar. These Petitions, sought among others, to restrain the signing of the MOA-AD. On August 4, 2008, a day before the intended signing of the initialed MOA-AD, this Court issued a Temporary Restraining Order stopping the signing of the MOA-AD. Several petitions-inintervention were also filed praying for the same relief. On August 8, 2008 and September 1, 2008, the respondents through the Solicitor General, submitted official copies of the initialed MOA-AD to the Court and furnished the petitioners and petitioners-inintervention with copies of the same. All the petitions were heard by the Court in three separate days of oral arguments. In the course of the arguments, the Solicitor General informed the Court that the MOA-AD will not be signed "in its present form or any other form."[14] Thereafter, the government Peace Panel was dismantled by the President.

II. Petitions should be Decided on the Merits The first threshold issue is whether this Court should exercise its power of judicial review and decide the petitions at bar on the merits. I respectfully submit that the Court should not avoid its constitutional duty to decide the petitions at bar on their merit in view of their transcendental importance. The subject of review in the petitions at bar is the conduct of the peace process with the MILF which culminated in the MOA-AD. The constitutionality of the conduct of the entire peace process and not just the MOA-AD should go under the scalpel of judicial scrutiny. The review should not be limited to the initialed MOA-AD for it ismerely the product of a constitutionally flawed process of negotiations with the MILF. Let us revisit the steps that led to the contested and controversial MOA-AD. Peace negotiations with the MILF commenced with the execution of ceasefire agreements. The watershed event, however, occurred in 2001, with the issuance of Executive Order No. 3[15] entitled "Defining Policy and Administrative Structure for Government's Comprehensive Peace Efforts." Government Peace Negotiating Panels were immediately constituted to negotiate peace with rebel groups, which included the MILF. Significantly, Executive Order No. 3 provides that in the pursuit of social, economic and political reforms, administrative action, new legislation or even constitutional amendments may be required.[16] Section 4 of Executive Order No. 3 states, viz: SECTION 4. The Six Paths to Peace. -- The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments.

xxxx c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves the conduct of face-toface negotiations to reach peaceful settlement with the different rebel groups. It also involves the effective implementation of peace agreements. (Emphasis supplied) Executive Order No. 3, was later amended by E.O. No. 555,[17] and was followed by the Tripoli Peace Agreement of 2001. The Tripoli Peace Agreement of 2001 became the basis for several rounds of exploratory talks between the GRP Peace Panel and the MILF. These exploratory talks resulted in the signing of the Joint Statements of the GRP and MILF peace panels to affirm commitments that implement the Tripoli Agreement of 2001, including the ancestral domain aspect. The issuance of the Joint Statements culminated in the initialing of the MOA-AD.[18] It is crystal clear that the initialing of the MOA-AD is but the evidence of the government peace negotiating panel's assent to the terms contained therein. If the MOA-AD is constitutionally infirm, it is because the conduct of the peace process itself is flawed. It is the constitutional duty of the Court is to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the government peace negotiating panel in the conduct of the peace negotiations with the MILF. The Court should not restrict its review on the validity of the MOA-AD which is but the end product of the flawed conduct of the peace negotiation with the MILF. Requirements of Ripeness and Mootness are not bars to review In contending that this Court should refrain from resolving the merits of the petitions at bar, two principal defenses were deployed by the Solicitor General: the issues raised for resolution are not ripe for adjudication and regardless of their ripeness, are moot. With due respect, the defenses cannot be sustained. To contend that an issue is not ripe for adjudication is to invoke prematurity; [19] that the issue has not reached a state where judicial intervention is necessary, hence, there is in reality no actual controversy. On the other hand, to urge that an issue has become moot concedes that judicial intervention was once proper but subsequent developments make further judicial action unnecessary. Together, mootness and ripeness act as a two-

pronged pincer, squeezing the resolution of controversies within a narrow timeframe.[20] First, the issues at bar are ripe for resolution. In Ohio Forestry Ass'n Inc. v. Sierra Club,[21] the following factors were identified as indicative of the ripeness of a controversy: 1. Whether delayed review would cause hardship to the plaintiffs; 2. Whether judicial intervention would inappropriately interfere with further administrative action; 3. Whether the Court would benefit from further factual development of the issues presented; Underlying the use of the foregoing factors is first, the setting of a threshold for review and second, judicial application of the threshold to the facts extant in a controversy. I respectfully submit that where a controversy concerns fundamental constitutional questions, the threshold must be adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage before anything irreversible is undertaken under cover of an unconstitutional act. Schwartz cites one vital considerationin determining ripeness, viz: In dealing with ripeness, one must distinguish between statutes and other acts that are self-executing and those that are not. If a statute is self executing, it is ripe for challenge as soon as it is enacted. For such a statute to be subject to judicial review, it is not necessary that it be applied by an administrator, a prosecutor, or some other enforcement officer in a concrete case.
[22]

immediately effective by the terms of the MOA-AD alone, (2) those with a period or which are to be effective within a stipulated time, and (3) those that are conditional or whose effectivity depends on the outcome of a plebiscite. Let us cast an eye on the self executory provisions of the MOAAD which will demolish the argument of the respondents that the issues in the petitions at bar are not ripe for adjudication. The MOA-AD provides that "the Parties affirm that the core of the BJE shall constitute the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite." The MOA-AD then proceeds to enumerate the powers that the BJE possesses within its area. The BJE is granted powers of governance which it can exercise without need of amendments to be made to the Constitution or existing law or without imposing any condition whatsoever. The MOA-AD also gives the BJE the unconditional right to participate in international meetings and events, e.g., ASEAN meetings and other specialized agencies of the United Nations.[25] It grants BJE the right to participate in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable sharing of incomes and revenues, in addition to those of fishing rights.[26] Again, these rights are given to the BJE without imposing prior conditions such as amendments to the Constitution, existing law or the enactment of new legislation. Next, let us go to provisions of the MOA-AD with a period which will further demonstrate the lack of merit of respondents' posture that the petitions at bar are not ripe for adjudication. The MOA-AD provides that "without derogating from the requirements of prior agreements[27], the Government stipulates to conduct and deliver, within twelve (12) months following the signing of the Memorandum of Agreement on Ancestral Domain, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A x x x the Parties shall endeavor to complete negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from signing of the MOA-AD."[28] Once more, it is evident that no conditions were imposed with respect to the conduct of a plebiscite within twelve months following the signing of the MOA-AD. The

Although Schwartz employs the term "statute," he qualifies that the principle enunciated applies to other governmental acts as well.[23] Prescinding from these parameters, it is evident that the Court is confronted with a MOA-AD that is heavily laden with selfexecuting components. Far from the representation of the Solicitor General, the MOA-AD is not a mere collection of consensus points,[24] still bereft of any legal consequence. The commitments made by the government panel under the MOA-AD can be divided into (1) those which are self-executory or are

provision starkly states that within twelve months, the government will conduct and deliver a plebiscite covering areas under Category A of the MOA-AD. We now come to respondents' argument on mootness. In determining whether a case has been rendered moot, courts look at the development of events to ascertain whether the petitioner making the constitutional challenge is confronted with acontinuing harm or a substantial potential of harm. Mootness is sometimes viewed as "the doctrine of standing set in a time frame: The requisite personal interest must exist at the commencement of the litigation and must continue throughout its existence."[29] Stated otherwise, an actual controversy must be extant at all stages of judicial review, not merely at the time the complaint is filed.[30] Respondents insist that the petitions at bar are moot for three reasons: (1) the petitioners North Cotabato and Zamboanga have already been furnished copies of the MOA-AD; (2) the Executive Secretary has issued a Memorandum that the government will not sign the MOA-AD and, (3) the GRP Peace Panel has been dissolved by the President. These grounds are barren grounds. For one, the press statements of the Presidential Adviser on the Peace Process, Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will still be used as a major reference in future negotiations.[31] For another, the MILF considers the MOA-AD a "done deal," [32] hence, ready for implementation. On the other hand, the peace panel may have been temporarily dismantled but the structures set up by the Executive and their guidelines which gave rise to the present controversy remain intact. With all these realities, the petitions at bar fall within that exceptional class of cases which ought to be decided despite their mootness because the complained unconstitutional acts are "capable of repetition yet evading review."[33] This well-accepted exception to the non-reviewability of moot cases was first enunciated in the case of Southern Pacific Terminal Co. v. ICC.[34]The United States Supreme Court held that a case is not moot where interests of a public character are asserted under conditions that may be immediately repeated, merely because the particular order involved has expired. In the petitions at bar, one need not butt heads with the Solicitor General to demonstrate the numerous constitutional infirmities of

the MOA-AD. There is no need to iterate and reiterate them. Suffice to stress that it is because of these evident breaches, that the MOA-AD requires the present Constitution to undergo radical revisions. Yet, the unblushing threat is made that the MOA-AD which shattered to smithereens all respect to the Constitution will continue to be a reference point in future peace negotiations with the MILF. In fine, the MOA-AD is a constitutional nightmare that will come and torment us again in the near future. It must be slain now. It is not moot. Let us adhere to the orthodox thought that once a controversy as to the application of a constitutional provision is raised before this Court, it becomes a legal issue which the Court is hide-bound to decide.[35] Supervening events, whether contrived or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution has already been committed or the threat of being committed again is not a hypothetical fear.[36] It is the function of judicial review to uphold the Constitution at all cost or we forfeit the faith of the people.

III. The Deviation from the MNLF Model of Pursuing Peace with Rebels is Inexplicable The MNLF model in dealing with rebels which culminated in the Peace Agreement of 1996, was free from any infirmity because it respected the metes and bounds of the Constitution. While the MNLF model is ostensibly based on the Tripoli Agreement of 1976, its implementation was in perfect accord with Philippine laws. The implementation of the Tripoli Agreement of 1976 came in two phases: the first, under the legislative power of then President Marcos and the second, under the provisions of Article X of the 1987 Constitution and its implementing legislation, Republic Act No. 6734.[37] Under President Marcos, autonomy in the affected provinces was recognized through Presidential Proclamation No.1628. It declared autonomy in 13 provinces and constituted a provisional government for the affected areas. The proclamation was followed by a plebiscite and the final framework for the autonomous region was embodied in Presidential Decree No.1618. The establishment of the autonomous region under P.D. 1628

wasconstitutionalized by the commissioners in the 1987 Constitution as shown by the following exchange of views: MR. ALONTO: Madam President, I have stated from the start of our consideration of this Article on Local Governments that the autonomous region exists now in this country. There is a de facto existence of an autonomous government in what we call now Regions IX and XII. Region IX is composed of the provinces of TawiTawi, Sulu, Basilan, Zamboanga City, Zamboanga del Sur and Zamboanga del Norte, including all the component cities in the provinces. Region XII is composed of the Provinces of Lanao del Norte, Lanao del Sur, Maguindanao, Sultan Kudarat and North Cotabato. This autonomous region has its central governmental headquarters in Zamboanga City for Region IX and in Cotabato City for Region XII. In fact, it is stated by Commissioner Ople that it has an executive commission and a legislative assembly. MR. DE CASTRO: Madam President. MR. ALONTO: These two regions have been organized by virtue of P.D. No. 1618 of President Marcos, as amended by P.D. No. 1843. MR. DE CASTRO: Madam President. MR. ALONTO: If the Gentleman will bear with me, I will explain to him. That is why there is a de facto autonomous government existing in Mindanao MR. DE CASTRO: Madam President. THE PRESIDENT: May we please allow Commissioner Alonto to finish his remarks before any interruption? MR. DE CASTRO: Yes Madam President. MR. ALONTO: Madam President, this autonomous region is recognized by the present regime for the very reason that the present regime is now in the process of a negotiation with the Moro National Liberation Front. In a way, what we are doing is to give constitutional basis for the President of this country today to proceed with the negotiation with the Moro National Liberation Front. THE PRESIDENT: Commissioner Uka is recognized. MR. UKA: Madam President, not only that. President Corazon C.

Aquino has appointed Mr. Albert Tugum as the Chairman of Region IX and Mr. Datu Zakaria Candau as chairman of Region XII. They are doing their work well right now. So there are two recognized autonomous regions. They have also a complete regional assembly as the legislative body. So, it is only a matter of putting this in the Constitution. THE PRESIDENT: So, what is before the body is the proposed amendment on Line 11 of Section 1. Commissioner de Castro is recognized. MR. DE CASTRO: Madam President, if there is now an autonomous region in Mindanao and if, according to the Honorable Ople, this has the recognition of the central government, what then is the use of creating autonomous regions in Muslim Mindanao and going through the process of a plebiscite and enacting an organic act? My amendment is simply to clarify the term "Muslim Mindanao." I really did not expect that this will go this far --- that it is being placed in the Constitution, that it is a fait accompli and that all we have to do here is say "amen" to the whole thing and it we do not say "amen," they will still continue to be autonomous regions. I insist on my amendment, Madam President. MR. OPLE: May I provide more information to Commissioner de Castro on this matter. First of all, we have to correct the misimpression that the autonomous regions, such as they now exist in Mindanao, do not enjoy the recognition of the central government. Secondly, may I point out that the autonomy existing now in Regions IX and XII is a very imperfect kind of autonomy. We are not satisfied with the legal sufficiency of these regions as autonomous regions and that is the reason the initiative has been taken in order to guarantee by the Constitution the right to autonomy of the people embraced in these regions and not merely on the sufferance of any existing or future administration. It is a right, moreover, for which they have waged heroic struggles, not only in this generation but in previous eras and, therefore, what we seek is constitutional permanence for this right. May I also point out, Madam President, that the Tripoli Agreement was negotiated under the aegis of foreign powers. No matter how friendly and sympathetic they are to our country, this is under the aegis of the 42-nation Islamic Conference. Should our brothers look

across the seas to a conclave of foreign governments so that their rights may be recognized in the Constitution? Do they have to depend upon foreign sympathy so that their right can be recognized in final, constitutional and durable form. THE PRESIDENT: Commissioner Ople, the consensus here is to grant autonomy to the Muslim areas of Mindanao? MR. OPLE: Yes.(Emphasis supplied)[38] Clearly, the mandate for the creation of the ARMM is derived principally from the 1987 Constitution. Thereafter, ARRM was given life by Republic Act No. 6734,[39] the Organic Act of the ARMM. Our executive officials were guided by and did not stray away from these legal mandates at the negotiation and execution of the Peace Agreement with the MNLF in 1996. Without ifs and buts, its Whereas Clauses affirmed our sovereignty and territorial integrity and completely respected our Constitution.[40] In stark contrast, the peace process with the MILF draws its mandate principally from Executive Order No. 3. This executive order provided the basis for the execution of the Tripoli Agreement of 2001 and thereafter, the MOA-AD.During the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution. They played fast and loose with the do's and dont's of the Constitution. They acted as if the grant of executive power to the President allows them as agents to make agreements with the MILF in violation of the Constitution. They acted as if these violations can anyway be cured by committing that the sovereign people will change the Constitution to conform with the MOA-AD. They forgot that the Constitution grants power but also sets some impotence on power.

recognized expressly by E.O. No. 3[42] as well as by E.O. No. 555. [43] The President's powers in dealing with rebellion are spelled out in Article VII, section 18 of the Constitution, viz: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within fortyeight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus,

IV. The Exercise of Executive Power is Subject to the Constitution Clearly, the respondents grossly misunderstood and patently misapplied the executive powers of the President. The MILF problem is a problem of rebellion penalized under the Revised Penal Code.[41] The MILF is but a rebel group. It has not acquired any belligerency status. The rebellion of the MILF is

any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. These are the well crafted commander-in-chief powers of the President. They enumerate with exactitude the powers which the President should use in dealing with rebellion. They are graduated in degrees. The strongest of these powers is the power to declare martial law and worthy to note, its exercise is subject to restraints. But more important, all these commander-in-chief powers can only be used to quell the rebellion. They cannot be utilized to dismember the State or to create a state within our State and hand it over to the MILF rebels. In dealing with the MILF rebellion, the President may, however, opt not to use force but negotiate peace with the MILF. Undoubtedly, the President as Chief Executive can negotiate peace with rebels, like the MILF. Article VII, section 1 of the Constitution vests in the President the entire panoply of executive power, to reach peace with rebels. But undoubtedly too, the exercise of executive power to secure peace with rebels is limited by the Constitution. All these are due to the preeminent principle that our government is fundamentally one of limited and enumerated powers. As well stated in Angara v. Electoral Commission,[44] viz: But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. In fine, there is no power in the Constitution that can run riot. There is no power in the Constitution that is unbounded. There is no power in the Constitution that can be exercised if it will destroy the Constitution. For all powers in the Constitution are designed to preserve the Constitution.

In other words, the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed. The President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy. For even in times of war, our system of checks and balances cannot be infringed.[45] More so in times where the only danger that faces the State is the lesser danger of rebellion. Needless to stress, the power of the President to negotiate peace with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits - the Constitution. The Constitution was ordained by the sovereign people and its postulates may not be employed as bargaining chips without their prior consent.

V. The Constitution as Compact of the People

The question may be asked: In the process of negotiating peace with the MILF, why cannot the Executive commit to do acts which are prohibited by the Constitution and seek their ratification later by its amendment or revision? Many philosophical perspectives have been advanced in reply to this question. Yet, no theory has been as influential, nor has been as authoritative, as the social contract theory,[46] articulated by John Locke, viz: For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be

concluded by the majority. And therefore we see, that in assemblies, empowered to act by positive laws, where no number is set by that positive law which empowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.
[47]

Respondents' thesis of violate now, validate later makes a burlesque of the Constitution. I vote to grant the petitions. SEPARATE CONCURRING OPINION

The French philosopher, Jean Jacques Rosseau stressed the nonderogability of this social contract, viz: But the body politic or sovereign, deriving its existence only from the sanctity of the contract, can never bind itself, even to others, in anything that derogates from the original act, such as alienation of some portion of itself, or submission to another sovereign. To violate the act by which it exists would be to annihilate itself; and what is nothing produces nothing.[48] Dean Vicente Sinco of the U.P. College of Law articulated these precepts in his seminal work, Philippine Political Law, viz: As adopted in our system of jurisprudence a constitution is a written instrument which serves as the fundamental law of the state. In theory, it is the creation of the will of the people, who are deemed the source of all political powers. It provides for the organization of the essential departments of government, determines and limits their powers, and prescribes guarantees to the basic rights of the individual.[49] xxxx Some authorities have also considered the constitution as a compact, an "agreement of the people, in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves." This notion expresses the old theory of the social contract obligatory on all parties and revocable by no one individual or group less than the majority of the people; otherwise it will not have the attribute of law.[50] (Emphasis supplied) In sum, there is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions.

YNARES-SANTIAGO, J.: I join the majority opinion and concur in the views expressed in the ponencia. More particularly, I register my agreement in prohibiting respondents and their agents from signing and executing the Memorandum of Agreement on Ancestral Domain (MOA-AD), or any similar instruments. The said MOA-AD contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines territorial sovereignty, which our people has spent decades fighting for and which scores of men in uniform have valiantly defended. While the ponencia exhaustively discusses the grounds upon which the Court must invalidate and strike down the many questionable provisions of the MOA-AD, I wish to add some important points which, I hope, will serve to further highlight and underscore the serious constitutional flaws in the MOA-AD. Only after certain quarters took notice and raised a clamor, and only after this Court has issued a temporary restraining order enjoining the signing of the MOA-AD, did respondents, through the Office of the Solicitor General and the Executive Secretary, openly declare that the MOA-AD or any similar instrument will not be signed by the GRP. On this basis, respondents assert that the petitions have become moot and academic. This, to my mind, was a mere afterthought. For were it not for the timely exposure of the MOA-AD in the public light, the signing thereof would have gone ahead as planned. Furthermore, respondents protestations that the petitions have become moot and academic in view of the disclosure and nonsigning of the MOA-AD is unavailing, as it is well-recognized that mootness, as a ground for dismissal of a case, is subject to certain exceptions. In David v. Pres. Arroyo, [1] we held that the Court will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the Constitution; (2) the situation is exceptional in character and paramount public interest is involved; (3) the

constitutional issues raised requires formulation of controlling principles to guide the bench, the bar and the public; and (4) the case is capable of repetition yet evading review. To my mind, all of these circumstances are present in the cases at bar. It is beyond cavil that these petitions involve matters that are of paramount public interest and concern. As shown by recent events, the MOA-AD has spawned violent conflicts in Mindanao and has polarized our nation over its real import and effects. The controversy over the agreement has resulted in unnecessary loss of lives, destruction of property and general discord in that part of our country. Strong reasons of public policy and the importance of these cases to the public demands that we settle the issues promptly and definitely, brushing aside, if we must, technicalities of procedure. The petitions also allege that the GRP panel committed grave violations of the Constitution when it negotiated and agreed to terms that directly contravene the fundamental law. The basic issue which emerged from all the assertions of the parties is not only whether the MOA-AD should be disclosed or signed at all but, more significantly, whether the GRP panel exceeded its powers in negotiating an agreement that contains unconstitutional stipulations. Considering that it has been widely announced that the peace process will continue, and that a new panel may be constituted to enter into similar negotiations with the MILF, it is necessary to resolve the issue on the GRP panels authority in order to establish guiding and controlling principles on its extent and limits. By doing so, a repetition of the unfortunate events which transpired in the wake of the MOA-AD can hopefully be avoided. There is also the possibility that an agreement with terms similar to the MOA-AD may again be drafted in the future. Indeed, respondents cannot prevent this Court from determining the extent of the GRP panels authority by the simple expedient of claiming that such an agreement will not be signed or that the peace panel will be dissolved. There will be no opportunity to finally the settle the question of whether a negotiating panel can freely stipulate on terms that transgress our laws and our Constitution. It can thus be said that respondents act of negotiating a peace agreement similar to the MOA-AD is capable of repetition yet evading review. [2] The ultimate issue in these cases is whether the GRP panel went beyond its powers when it negotiated terms that contravene the Constitution. It is claimed that the panel stipulated on matters that

were outside of its authority and under the exclusive prerogative of Congress. In other words, the constitutional as well as legal limits of executive authority in the drafting of a peace agreement have been squarely put in issue. This involves a genuine constitutional question that the Court has the right and duty to resolve. Respondents insist that it is not necessary to discuss the constitutionality of each provision of the MOA-AD, because the latter is but a codification of consensus points which creates no rights and obligations between the parties. The MOA-AD allegedly has no legal effects, even if it is signed, because it is merely a preliminary agreement whose effectivity depends on subsequent legal processes such as the formulation of a Comprehensive Compact, the holding of a plebiscite, the amendment of laws by Congress as well as constitutional amendments. Consequently, it would be premature for the Court to pass upon the constitutional validity of the MOA-AD since it is neither self-executory nor is it the final peace agreement between the GRP and MILF. A reading of the MOA-AD shows that its pertinent provisions on the basic concepts, territory, resources and governance of the Bangsamoro Juridical Entity (BJE) have been made to depend for its effectivity on changes to the legal framework. Paragraph 7 on the provisions on Governance states: 7. The parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements andwithin the stipulated timeframe to be contained in the Comprehensive Compact. The provisions of the MOA-AD which require amendments to the existing legal framework include practically all the substantive terms of the document. It is not difficult to foresee that the material provisions of the MOA-AD will require either an amendment to the Constitution or to existing laws to become legally effective. Some of the required constitutional or statutory amendments are the following:

a) Article I, Section 1 [3] of the Constitution has to be amended to segregate the BJE territory from the rest of the Republic of the Philippines, as the MOA-AD delineates the Bangsamoro homeland under its paragraph 1 [4] on Territory; b) Section 1, Article X [5] of the Constitution will have to include the BJE as among the five kinds of political subdivisions recognized under the fundamental law. The provision of an Autonomous Region for Muslim Mindanao (ARMM) will also have to be removed as the same is incorporated in the BJE per paragraph 2.c [6] of the MOA-AD provisions on Territory; c) The provision in Section 15, Article X [7] of the Constitution which declares the creation of the ARMM within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines must also be changed since there is no provision in the MOA-AD that subjects the BJE to the authority, territory and sovereignty of the Republic of the Philippines; d) Section 16, Article X [8] of the Constitution which gives the President power to supervise autonomous regions will have to be amended since the MOA-AD does not provide for such supervision over the BJE; e) Section 18, Article X [9] of the Constitution which requires personal, family and property laws of autonomous regions to comply with the Constitution and laws will have to be changed as the MOA-AD grants the BJE the power to make its own laws; f) An overhaul of the various constitutional provisions relating to the Executive, Judicial and Legislative Departments as well as the independent constitutional commissions must be undertaken to accommodate paragraph 8 [10] of the MOA-AD provision on Governance which grants the BJE the power to create its own civil institutions; g) Section 3, Article II of the Constitution which declares the Armed Forces of the Philippines as protector of the people and the State will have to be changed because the MOA-AD provides that the BJE shall have its own internal security force[11] and the AFP will only defend the Bangsamoro homeland against external aggression; [12] h) Section 2, Article XII [13] of the Constitution must be changed to allow the BJE to manage, explore, develop, and utilize the natural resources within the Bangsamoro territory, pursuant to paragraphs

2.f[14] , g (1)[15] and h[16] on Territory and paragraphs 1 Resources of the MOA-AD;

[17]

and 2[18] on

i) Section 21, Article VII [19] of the Constitution has to be amended to exempt the BJE from the ratification requirements of treaties and international agreements since it is given the power to enter into its own economic and trade agreements with other countries; j) The Bangsamoro homeland will have to be exempted from the power of the President to exercise general supervision of all local governments under Section 4, Article X[20] of the Constitution because the MOA-AD does not provide for any such stipulation; k) Since the BJE will have its own laws, it is not subject to limitations imposed by Congress on its taxing powers under Section 5, Article X[21]of the Constitution; l) R.A. No. 6734 and R.A. No. 9054, or the ARMM Organic Acts, have to be amended to allow for the existing ARMM to be included within the Bangsamoro homeland to be governed by the BJE; m) The Bangsamoro people will have to be exempted from the application of R.A. No. 8371 or the Indigenous Peoples Rights Act (IPRA) insofar as the MOA-AD declares the Bangsamoro territory as ancestral domain and recognizes in the Bangsamoro people rights pertaining to indigenous peoples under the IPRA; n) Existing laws which regulate mining rights and the exploitation of natural resources will also have to exempt the BJE from its coverage, as the MOA-AD grants the BJE the power to utilize, develop and exploit natural resources within its territory as well as the authority to revoke or grant forest concessions, timber licenses and mining agreements; and o) The BJE will also have to be exempted from existing agrarian statutes as the BJE is empowered to enact its own agrarian laws and program under paragraph 2.e[22] on Resources. From the foregoing, it is clear that the substantive provisions of the MOA-AD directly contravene the fundamental law and existing statutes. Otherwise, it would not be necessary to effect either statutory or constitutional amendments to make it effective. Moreover, as correctly pointed out by petitioners, the GRP panel exceeded its authority when it categorically undertook to make these statutory and constitutional changes in order to fully implement the MOA-AD.

Paragraph 7 of the MOA-AD on Governance states that provisions therein which require amendments to the existing legal framework shall come into force upon signing of the Comprehensive Compact and upon effecting the necessary changes to the legal framework. These necessary changes shall be undertaken with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. The language of the aforesaid paragraph 7 on Governance, in relation to paragraph 2 (d) on Territory, indicates that the GRP panel committed itself to cause the necessary changes to the legal framework within a stipulated timeframe for the MOA-AD to become effective. Paragraph 2(d) on Territory reads: 2. Toward this end, the Parties enter into the following stipulations: xxxx d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the Annex). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD. Pursuant to the above, the GRP panel bound itself to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD. On the other hand, it is explicitly provided in paragraph 7 on Governance that the Comprehensive Compact shall contain a stipulated timeframe within which to effect the necessary changes to the legal framework. In other words, the GRP panel undertook to change the legal framework within a contemplated period to be agreed upon within fifteen (15) months from the signing of the MOA-AD. It should also be noted that, in accordance with paragraph 2 (a) [23] on Territory, the GRP panel committed itself to the full and mutual implementation of this framework agreement on

territory. To fully realize the MOA-AD stipulations on territory, it would be necessary to effect both statutory and constitutional amendments as well as complete negotiations on the Comprehensive Compact. The plebiscite envisioned under paragraph 2 (c) on Territory, for instance, would require not only an amendment of the ARMM Organic Acts, but also a constitutional amendment that would allow for the very creation of the BJE. Thus, the full implementation of the territory provisions of the MOA-AD presupposes changes in the legal framework, which the GRP panel guaranteed under paragraph 7 on Governance. Additionally, paragraph 7 on Governance provides that necessary changes to the legal framework shall likewise be effected with due regard to non-derogation of prior agreements. This can only mean that any change to the legal framework should not diminish or detract from agreements previously entered into by the parties. It also implies that provisions of prior agreements are already final and binding, as these serve as take-off points for the necessary changes that will be effected to fully implement the MOA-AD. In my opinion, the MOA-AD is intended to be included among the prior agreements whose terms cannot be decreased by any of the changes that are necessary for it to come into force. More specifically, by the time the Comprehensive Compact shall have prescribed the timeframe for effecting these changes, the MOA-AD shall have become a prior agreement that is subject to the nonderogation clause found in paragraph 7 on Governance. This signifies that any change in the legal framework should adapt to the terms of the MOA-AD. The latter becomes the parameter of any statutory or constitutional amendments which are necessary to make the MOA-AD effective. As such, it cannot be denied that the GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to the legal framework. Respondents cannot deny this by saying that the parties further undertook to negotiate a Comprehensive Compact or a final peace agreement. Although it may be conceded that the parties have yet to enter into a Comprehensive Compact subsequent to the signing of the MOA-AD, the nature of this compact shows that the MOA-AD was intended as the controlling document for the essential terms of the Comprehensive Compact. Paragraphs 3 and 7 of the MOA-AD provisions on Governance invariably describe the Comprehensive Compact as merely embodyingdetails for the effective enforcement and actual implementation of the MOA-AD. Thus, the Comprehensive Compact will simply lay down the particulars of the parties final

commitments, as expressed in the assailed agreement. Consequently, paragraph 7 on Governance in relation to paragraph 2 (a) on Territory contradict respondents assertion that the MOAAD is merely a preparatory agreement devoid of any real effects. The language employed in these provisions do not support respondents contention that the MOA-AD is just a reference for future negotiations or consists of mere proposals that are subject to renegotiation. The words used in these provisions are categorical in stating that the GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to the legal framework within a stipulated timeframe. In other words, these are definite propositions that would have to be undertaken under the agreement of the parties. The foregoing discussion demonstrates that the MOA-AD is not merely a draft of consensus points that is subject to further negotiations between the GRP panel and the MILF. The language of the MOA-AD shows that the GRP panel made a real and actual commitment to fully implement the MOA-AD by effecting the necessary amendments to existing laws and the Constitution. The GRP panels obligation to fully implement the provisions on Territory and to effect these necessary changes is in itself not dependent on any statutory or constitutional amendment. It is only subject to a timeframe that will be specified in the Comprehensive Compact, per stipulation of the parties. At this point, it is worth noting that the MOA-AD cannot even be subjected to subsequent legal processes, such as a plebiscite or statutory and constitutional amendments. The MOA-AD cannot be validated by any of these means considering that the GRP panel does not even have the power to make these legal processes occur. This is because the panel is not authorized to commit to statutory and constitutional changes to fully implement the MOAAD. Thus, it is not legally possible to undertake these legal processes under the circumstances provided in the agreement. To emphasize, the GRP panel had neither power nor authority to commit the government to statutory and constitutional changes. The power to amend laws and to cause amendments or revisions to the Constitution belongs to Congress and, to a certain extent, the people under a system of initiative and referendum. Only Congress and the people have the competence to effect statutory and constitutional changes in the appropriate manner provided by law. The GRP panel, as a mere organ of the Executive branch, does not possess any such prerogative. In the matter of legislation, it is settled that the power of Congress under Article VI, Section 1[24] of the Constitution is plenary and allencompassing. The legislature alone determines when to propose or amend laws, what laws to propose or amend, and the proper circumstances under which laws are proposed or amended. As held inOple v. Torres:[25] ... Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them. The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Similarly, the power to amend or revise the Constitution also pertains to Congress in the exercise of its constituent functions. The same power is also reserved to the people under a system of initiative, pursuant to Article XVII[26] of the Constitution. InLambino v. COMELEC,[27] the Court stated that there are three modes of amending the Constitution under Article XVII. The first mode is through Congress, acting as a constituent assembly, upon threefourths vote of all its Members; the second mode is through a constitutional convention created under a law passed by Congress; and the third mode is through a peoples initiative. Nowhere in the Constitution does it state that the Executive or any of its organs can effect constitutional changes, as assumed by the GRP panel under the MOA-AD. Notwithstanding the apparent lack of power or authority, the GRP panel undertook to effect changes to the Constitution and to statutes in order to fully implement the MOA-AD. In doing so, the GRP panel pre-empted Congress by determining, firsthand, the wisdom of effecting these changes as well as the nature of the required amendments to laws and the Constitution. It encroached upon the exclusive prerogative of Congress by assuming to exercise a discretion that it did not possess. It thus exceeded its authority and acted without jurisdiction. It should have been evident to the GRP panel that it could not bargain away laws enacted by Congress or the peoples sovereign will as expressed in the Constitution. Apart from the fact that it had no power to do so, its acts were in clear disregard of the instructions of the President as stated in the Memorandum of

Instructions From the President dated March 1, 2001. The President clearly directed therein that (t)he negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of sovereignty and territorial integrity of the Republic of the Philippines. The GRP panel did otherwise and failed to act in accordance with this directive. The GRP panel derives its authority from the Chief Executive, whose sworn duty is to faithfully execute the laws and uphold the Constitution. In negotiating the terms of the MOA-AD, however, the GRP panel violated our Constitution and our laws by subscribing to stipulations that could very well lead to their emasculation. The GRP panel agreed to illegal and unconstitutional concessions and guaranteed the performance of a prestation that it could not deliver. This constitutes manifest grave abuse of discretion amounting to lack or excess of jurisdiction. It is beyond question that the MOA-AD is patently unconstitutional. Had it been signed by the parties, it would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions and armed forces. The concessions that respondents made to the MILF would have given the latter leverage to demand that the Bangsamoro homeland be recognized as a state before international bodies. It could insist that the MOA-AD is in fact a treaty and justify compliance with its provisions, under the international law principle of pacta sunt servanda. The sovereignty and territorial integrity of the Philippines would have been compromised. For these reasons, I vote to grant the petitions. Respondents must be prohibited and permanently enjoined from negotiating, executing and entering into a peace agreement with terms similar to the MOA-AD. Although respondents have manifested that the MOA-AD will not be signed in its present form or in any other form, the agreement must nonetheless be declared unconstitutional and, therefore, void ab initio, to remove any doubts regarding its binding effect on the Republic. Under no circumstance could the MOA-AD acquire legitimacy and force against the entire nation, and no less than a categorical declaration to this effect should put the issue to rest. I so vote. SEPARATE CONCURRING OPINION

CARPIO, J.: If this Court did not stop the signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD), this country would have been dismembered because the Executive branch would have committed to amend the Constitution to conform to the MOA-AD. The MOA-AD gives to the Bangsamoro Juridical Entity (BJE) the attributes of a state, with its own people, territory, government, armed forces, foreign trade missions, and all other institutions of a state,[1] under the BJE's own basic law or constitution.[2] Usurpation of the Powers of Congress and the People The initialed MOA-AD between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) is patently unconstitutional. The Executive branch's commitment under the MOA-AD to amend the Constitution to conform to the MOA-AD violates Sections 1 and 4, Article XVII of the Constitution. The Executive branch usurps the sole discretionary power of Congress to propose amendments to the Constitution as well as the exclusive power of the sovereign people to approve or disapprove such proposed amendments. Sections 1 and 4, Article XVII of the Constitution provide: Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Indisputably, the Executive branch has no power to commit to the MILF that the Constitution shall be amended to conform to the MOA-AD. Such commitment is a grave abuse of discretion amounting to lack or excess of jurisdiction.[3] The MOA-AD states, in paragraph 2(a) on Territory, that "the Parties to this Agreement commit themselves to the full and mutual implementation of this framework agreement."

The MOA-AD further states, in paragraph 7 on Governance, that: Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. (Emphasis supplied) The Executive branch commits to implement fully the MOA-AD by amending the "existing legal framework," impliedly referring to the Constitution. The Executive branch further commits that such constitutional amendments shall not derogate from prior GRP-MILF agreements. At the time of the constitutional amendments, the MOA-AD will be a prior agreement, along with several other GRP-MILF agreements.[4] The phrase "due regard to non-derogation of prior agreements" means there shall be no deviation from previous GRP-MILF agreements. The word "due" means a right to something, as in something that is "due" a person. This is the same usage of the word "due" in the phrase "due process of law," which means one's right to legal process. The word "regard" means attention or observance. "Non-derogation" means no deviation. Thus, "due regard to non-derogation of prior agreements" simply means observance of what the MILF is entitled under previous GRP-MILF agreements, to which there shall be no deviation. The phrase "due regard" means mandatory observance and not discretionary observance. When one speaks of "due regard for the law," one intends mandatory observance of the law. The same is true for "due regard to non-derogation of prior agreements," which means mandatory observance of non-derogation of previous agreements. The following pronouncements of the Court reveal the mandatory nature of the phrase "due regard": The least this Court can do under the circumstances is to make clear to all and sundry, especially to members of police forces, that the authority conferred on them to maintain peace and order should be exercised with due regard to the constitutional rights, most especially so of those who belong to the lower-income groups. If in a case like the present, the full force of the penal statute is not felt by the perpetrator of the misdeed, then the law itself stands

condemned. This we should not allow to happen.[5] (Emphasis supplied) Entrapment is allowed when it is undertaken with due regard to constitutional and legal safeguards. It has repeatedly been accepted as a valid means of arresting violators of the Dangerous Drugs Law.[6](Emphasis supplied) The phrase "due regard" is commonly found in international treaties and conventions, like the United Nations Convention on the Law of the Sea (UNCLOS) where the phrase appears at least 16 times. The phrase "due regard" as used in UNCLOS is explained as follows: [T]he requirement of "due regard" is a qualification of the rights of States in exercising the freedoms of the high seas. The standard of "due regard" requires all States, in exercising their high seas freedoms, to be aware of and consider the interests of other States in using the high seas, and to refrain from activities that interfere with the exercise by other States of the freedom of the high seas. As the ILC [which prepared drafts of the 1958 LOS Conventions], stated in its Commentary in 1956, "States are bound to refrain from any acts that might adversely affect the use of the high seas by nationals of other States." The construction in paragraph 2 recognizes that all States have the right to exercise high seas freedoms, and balances consideration for the rights and interests of all states in this regard. [7] (Emphasis supplied) The phrase "due regard," as used in the Convention on International Civil Aviation, is understood as giving rise to "a duty of `due regard' upon operators of state aircraft, and thus, upon military aircraft, for the safety of the navigation of civil aircraft."[8]Thus, "the `due regard' rule remains the principal treaty obligation imposed upon States for the regulation of the flight of military aircraft applicable during times of peace and armed conflict."[9] The Chairman of the MILF and its highest-ranking official, Al Haj Murad Ebrahim, candidly admitted that the MILF's understanding is that the Constitution shall be amended to conform to the MOA-AD. In an ABS-CBN television interview aired nationwide on 20 August 2008, and widely reported in the newspapers, MILF Chairman Murad stated:

It may be beyond the Constitution but the Constitution can be amended and revised to accommodate the agreement. What is important is during the amendment, it will not derogate or water down the agreement because we have worked this out for more than 10 years now.[10] (Emphasis supplied) During the oral arguments, Atty. Sedfrey Candelaria, principal counsel to the GRP Panel, when asked about this statement, did not dispute that MILF Chairman Murad made the statement. Atty. Candelaria simply told the Court that MILF Chairman Murad "did not sit in the negotiating table."[11] Clearly, under the MOA-AD, the Executive branch assumes the mandatory obligation to amend the Constitution to conform to the MOA-AD. During the oral arguments, Atty. Sedfrey Candelaria admitted that the implementation of the MOA-AD requires "drastic changes" to the Constitution.[12] As directed by Justice Antonio T. Carpio, Atty. Candelaria undertook to submit to the Court a listing of all provisions in the Constitution that needed amendment to conform to the MOA-AD.[13] In their Memorandum dated 24 September 2008, respondents stated: "In compliance with the said directive, the constitutional provisions that may be affected, as relayed by Atty. Sedfrey Candelaria, are the following -Sections 1, 5, 18, 20 and 21 of Article X under Local Autonomy."[14] This listing is grossly incomplete. A more thorough scrutiny shows that the "drastic changes" are amendments to the following provisions of the Constitution:

Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.

4. Section 1, Article VI on the Legislative Department.

[20]

Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall "build, develop and maintain its own institutions" [21]like a legislature whose laws are not subordinate to laws passed by Congress.[22]

5. Section 1, Article VII on executive power.[23] Executive power

shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.[24]

6. Section 16, Article VII on the President's power to appoint

certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments.[25] All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE's own basic law or constitution.

7. Section 17, Article VII on the President's control over all

executive departments.[26] The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE.

8. Section 18, Article VII on the President as "Commander-in1. Article 1 on the National Territory.[15] During the oral
arguments, Atty. Sedfrey Candelaria stated that this provision would have to be amended to conform to the MOA-AD.[16] Chief of all armed forces of the Philippines."[27] Under the MOA-AD, the President will not be the Commander-in-Chief of the BJE's internal security force. The BJE's internal security force will not be part of the AFP chain of command.

2. Section 3, Article II on the role of the Armed Forces of the

Philippines as "protector of the people and the State."[17] Under the MOA-AD, the AFP's role is only to defend the BJE against external aggression.[18]

9. Section 21, Article VII on the ratification of treaties and

international agreements by the Senate.[28] This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.
[29]

3. Article III on the Bill of Rights. The MOA-AD does not state
that the Bill of Rights will apply to the BJE. The MOA-AD refers only to "internationally recognized human rights instruments"[19] such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of

10. Section 1, Article VIII on judicial power being vested

in one Supreme Court.[30] Since the BJE will have "its own x x x judicial system,"[31] the BJE will also have its own Supreme Court.

11. Section 2, Article VIII on the power of Congress to define and

apportion the jurisdiction of lower courts.[32] Under the MOAAD, Congress cannot prescribe the jurisdiction of BJE courts.

jurisdiction over the BJE or its subdivisions, agencies or instrumentalities.

20. Section 1, Article X on the political subdivisions of the

Philippines.[44] A new political subdivision for the BJE will have to be created.

12. Section 5(2), Article VIII on the power of the Supreme Court
to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts.[33] Under the MOA-AD, the BJE will have its own judicial system. Decisions of BJE courts are not reviewable by the Supreme Court.

21. Section 4, Article X on the power of the President to exercise

general supervision over all local governments.[45] Under the MOA-AD, this provision will not apply to the BJE.

13. Section 5(6), Article VII on the power of the Supreme Court
to appoint allofficials and employees in the Judiciary.[34] This power will not apply to courts in the BJE.

22. Section 5, Article X subjecting the taxing power of local

governments to limitations prescribed by Congress.[46] Under the MOA-AD, the BJE shall have "its own x x x legislation."[47] The BJE's taxing power will not be subject to limitations imposed by national law.

14. Section 6, Article VIII on the Supreme Court's administrative

supervision overall courts and their personnel.[35] Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.

23. Section 6, Article X on the "just share" of local government

units in national taxes.[48] Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis--vis other local government units.

15. Section 9, Article VIII on the appointment by the President

of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council.[36]This provision will not apply to courts in the BJE.

16. Section 11, Article VIII on the power of the Supreme Court to
discipline judges of all lower courts.[37] This power will not apply to judges in the BJE.

24. Section 10, Article X on the alteration of boundaries of local

government units, which requires a plebiscite "in the political units affected."[49] Under paragraph 2(d) on Territory of the MOA-AD,[50] the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite "in the political units affected," which should include all the barangays within a city, and all municipalities within a province.

17. Section 1(1), Article IX-B on the power of the Civil Service
Commission to administer the civil service.[38] Under the MOA-AD, the BJE will have "its ownx x x civil service"[39] The Civil Service Commission will have no jurisdiction over the BJE's civil service.

18. Section 2(1), Article IX-C on the power of the Commission on

Elections to enforce and administer all election laws. [40] Under the MOA-AD, the BJE will have "its own x x x electoral system."[41] The Commission on Elections will have no jurisdiction over the BJE's electoral system.

25. Section 15, Article X on the creation of autonomous regions

within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines.[51] This will have to be revised since under the MOA-AD the BJE has all the attributes of a state.

19. Section 2(1), Article IX-D on the power of the Commission on

Audit to examine and audit all subdivisions, agencies and instrumentalities of the Government.[42] Under the MOA-AD, the BJE can "build, develop and maintain its own institutions"[43] without limit. The BJE can create its own audit authority. The Commission on Audit will have no

26. Section 16, Article X on the President's power to exercise

general supervision over autonomous regions.[52] This provision will not apply to the BJE, which is totally independent from the President's supervision.

27. Section 17, Article X which vests in the National Government

residual powers, or those powers which are not granted by

the Constitution or laws to autonomous regions.[53] This will not apply to the BJE.

[62]

28. Section 18, Article X which requires that personal, family

and property laws of autonomous regions shall be consistent with the Constitution and national laws.[54] This will not apply to the BJE which will have its own basic law or constitution.
[55]

This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency.

33. Section 20, Article XII on the establishment of an

independent monetary authority, now the Bangko Sentral ng Pilipinas.[63] Under the MOA-AD, the BJE will have its own financial and banking authority.[64]

29. Section 20, Article X on the legislative powers of

autonomous regional assemblies whose laws are subject to the Constitution and national laws.[56]This provision will not apply to the BJE.

34. Section 4, Article XVI on the maintenance of "a regular

force necessary for the security of the State."[65] This provision means there shall only be one"Armed Forces of the Philippines" under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have "its own x x x internal security force"[66] which will not be under the command and control of the President.

30. Section 21, Article X on the preservation of peace and order

within autonomous regions by the local police as provided in national laws.[57] Under the MOA-AD, the BJE shall have "its own x x x police"[58] to preserve peace and order within the BJE.

35. Section 5(6), Article XVI on the composition of the armed

forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable.[67] This will not apply to the BJE's internal security force whose personnel will come only from BJE areas.

31. Section 2, Article XII on State ownership of all lands of the

public domain and of all natural resources in the Philippines. [59] Under paragraph 3 on Concepts and Principles of the MOA-AD,[60] ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD,[61] the Bangsamoro people are the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples in Mindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521. In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao , Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions.

36. Section 6, Article XVI on the establishment of one police

force which shall be national in scope under the administration and control of a national police commission. [68] The BJE will have "its own x x x police"[69] which is aregional police force not administered or controlled by the National Police Commission. The Executive branch thus guarantees to the MILF that the Constitution shall be drastically overhauled to conform to the MOA-AD. The Executive branch completely disregards that under the Constitution the sole discretionary power to propose amendments to the Constitution lies with Congress, and the power to approve or disapprove such proposed amendments belongs exclusively to the people. The claim of respondents that the phrase "prior agreements" does not refer to the MOA-AD but to GRP-MILF agreements prior to the MOA-AD is immaterial. Whether the prior agreement is the MOA-AD or any other GRP-MILF agreement prior to the constitutional amendments, any commitment by the Executive branch to amend the Constitution without derogating from such prior GRP-MILF

32. Section 9, Article XII on the establishment of an independent

economic and planning agency headed by the President.

agreement would still be unconstitutional for the same reason -usurpation by the Executive branch of the exclusive discretionary powers of Congress and the Filipino people to amend the Constitution. Violation of Constitutional Rights of Lumads Under the MOA-AD, the Executive branch also commits to incorporate all the Lumads in Mindanao, who are non-Muslims, into the Bangsamoro people who are Muslims. There are 18 distinct Lumad groups in Mindanao with their own ancestral domains and their own indigenous customs, traditions and beliefs. The Lumads have lived in Mindanao long before the arrival of Islam and Christianity. For centuries, the Lumads have resisted Islam, a foreign religion like Christianity. To this day, the Lumads proudly continue to practice their own indigenous customs, traditions and beliefs. Suddenly, without the knowledge and consent of the Lumads, the Executive branch has erased their identity as separate and distinct indigenous peoples. The MOA-AD, in paragraph 1 on Concepts and Principles, provides: It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the indigenous people shall be respected. (Emphasis supplied) The declaration that it is the "birthright of x x x all Indigenous peoples of Mindanao to identify themselves and be accepted as `Bangsamoros'" is cultural genocide. It erases by a mere declaration the identities, culture, customs, traditions and beliefs of 18 separate and distinct indigenous groups in Mindanao. The "freedom of choice" given to the Lumads is an empty formality because officiallyfrom birth they are already identified as Bangsamoros. The Lumads may freely practice their indigenous customs, traditions and beliefs, but they are still identified and known as Bangsamoros under the authority of the BJE. The MOA-AD divests the Lumads of their ancestral domains and

hands over possession, ownership and jurisdiction of their ancestral domains to the BJE. In paragraphs 2, 3 and 6 on Concepts and Principles, the MOA-AD gives ownership over the Bangsamoros' ancestral domain to the Bangsamoro people, defines the ancestral domain of the Bangsamoros, and vests jurisdiction and authority over such ancestral domain in the BJE, thus: 2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people's humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all theBangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants. 3. x x x Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually x x x. xxxx 6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and nonalienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domains/lands of the Bangsamoro people located therein. (Emphasis supplied) After defining the Bangsamoro people to include all the Lumads, the MOA-AD then defines the ancestral domain of the Bangsamoro people as the ancestral domain of allthe Bangsamoros, which now includes the ancestral domains of all the Lumads. The MOA-AD declares that exclusive ownership over the Bangsamoro ancestral domain belongs to the Bangsamoro people. The MOA-AD vests jurisdiction and authority over the Bangsamoros' ancestral domain in the BJE. Thus, the Lumads lost not only their separate identities but also their ancestral domains to the Bangsamoros and the BJE. The incorporation of the Lumads as Bangsamoros, and the transfer of their ancestral domains to the BJE, without the Lumads' knowledge and consent,[70] violate the Constitutional guarantee that

the "State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development."[71] The incorporation also violates the Constitutional guarantee that the "State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural minorities to their ancestral lands to ensure their economic, social, and cultural well-being."[72] These Constitutional guarantees, as implemented in the Indigenous Peoples' Rights Act of 1997, grant the Lumads "the right to participate fully, if they so chose, at all levels of decisionmaking in matters which may affect their rights, lives and destinies."[73] Since the Executive branch kept the MOA-AD confidential until its publication in the Philippine Daily Inquirer on 4 August 2008, the day before its scheduled signing in Kuala Lumpur, Malaysia, there could have been no participation by the 18 Lumad groups of Mindanao in their incorporation into the Bangsamoro. This alone shows that the Executive branch did not consult, much less secure the consent, of the Lumads on their rights, lives and destinies under the MOA-AD. In fact, representatives of the 18 Lumad groups met in Cagayan de Oro City and announced on 27 August 2008, through their convenor Timuay Nanding Mudai, that "we cannot accept that we are part of the Bangsamoro."[74] The incorporation of the Lumads, and their ancestral domains, into the Bangsamoro violates the Constitutional and legislative guarantees recognizing and protecting the Lumads' distinct cultural identities as well as their ancestral domains. The violation of these guarantees makes the MOA-AD patently unconstitutional. The incorporation of the Lumads, and their ancestral domains, into the Bangsamoro without the Lumads' knowledge and consent also violates Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples.[75] Section 8 of the Declaration states: Article 8. 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. (Emphasis supplied) The provisions of Article 8 were designed to prevent cultural genocide of indigenous peoples. This will happen if the Lumads are identified from birth as Bangsamoros and their ancestral domains are absorbed into the ancestral domain of the Bangsamoros. There is another provision in the MOA-AD that could prove oppressive to the Lumads, and even invite conflicts with Christians. The MOA-AD, in paragraph 4 on Territory,empowers the BJE to establish political subdivisions within the Bangsamoro ancestral domain, as follows: All territorial and geographic areas in Mindanao and its adjacent islands including Palawan and the Sulu archipelago that have been declared recognized, and/or delineated as ancestral domain and ancestral land of the Bangsamoro people as their geographical areas, inclusive of settlements and reservations, may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions subject to the principles of equality of peoples and mutual respect and to the protection of civil, political, economic, and cultural rights in their respective jurisdictions. Thus, the BJE can create political subdivisions -- barangays and municipalities -- within the Bangsamoro ancestral domain. Under the MOA-AD, the Bangsamoro ancestral domain includes the ancestral domains of the Lumads. The BJE can create barangays and municipalities in areas that are presently the ancestral domains of the Lumads.The BJE can station its police and internal security force in these areas. Many of these areas -- the present ancestral domains of the Lumads -- are located within provinces, cities and municipalities where

2. States shall provide effective mechanisms for prevention of,

and redress for:

Christians are the majority. There are obvious possible adverse ramifications of this power of the BJE to create political subdivisions within provinces, cities and municipalities outside of the BJE territory. The creation by the BJE of such political subdivisions will alter the boundaries of the affected provinces, cities and municipalities, an alteration that, under the Constitution, requires an act of Congress and a plebiscite in the affected political units.[76] The Executive branch must conduct widespread consultations not only with the Lumads, but also with the Christians who, under the MOA-AD, will be affected by the creation of such BJE political subdivisions within their provinces, cities and municipalities. Petitions Present Justiciable Controversy The claim of respondents that the MOA-AD, not having been signed but merely initialed, does not give rise to an actual controversy cognizable by the Court, is gravely erroneous. The MOA-AD has two features: (1) as an instrument of cession of territory and sovereignty to a new state, the BJE; and (2) as a treaty with the resulting BJE, governing the associative relationship with the mother state,[77] the Philippines, whose only important role in the relationship is "to take charge of external defense."[78] Justice Vicente V. Mendoza, a former member of this Court and a recognized authority on constitutional law, states: It is indeed true that the BJE is not fully independent or sovereign and indeed it is dependent on the Philippine government for its external defense and only lacks foreign recognition, at least at the present time.Nonetheless it is a state as the Philippines was a state during the Commonwealth period, which was not a part of the territory of the United States although subject to its sovereignty. As a state, it was a signatory to several treaties and international agreements, such as the Charter of the United Nations of January 1, 1942, and a participant in several conferences such as that held in Bretton Woods, New Hampshire, on July 1-22, 1944, on the GATT . As the U.S. Supreme Court noted in Hooven & Allison Co. v. Evatt, the adoption of the 1935 Constitution prepared the way for the complete independence of the Philippines and the government organized under it had been given, in many aspects, by the United States "the status of an independent government which has been reflected in its relation as such with the outside world." Similarly, the Supreme

Court of the Philippines held in Laurel v. Misa that "the Commonwealth of the Philippines was a sovereign government although not absolute."[79] (Emphasis supplied) Thus,once the MOA-AD is signed, the MILF, as the acknowledged representative of the BJE, can exercise the rights of the BJE as a state. The MILF, on behalf of the BJE, can then demand that the Philippines comply, under the principle of pacta sunt servanda, with the express terms of the MOA-AD requiring the Philippines to amend its Constitution to conform to the MOA-AD. Under the 1969Vienna Convention on the Law of Treaties, the Philippines cannot invoke its internal law, including its Constitution, as justification for non-compliance with the MOA-AD, which operates as a treaty between the GRP and the BJE.[80] Thus, under international law, the Philippines is obligated to amend its Constitution to conform to the MOA-AD, whether Congress or the Filipino people agree or not. If this Court wants to prevent the dismemberment of the Philippines, a dismemberment that violates the Constitution, the Court should not wait for the GRP Panel to sign the MOA-AD. Once the MOA-AD is signed, international law steps in resulting in irreversible consequences extremely damaging to the sovereignty and territorial integrity of the Philippines. No subsequent ruling or order of this Court can undo this terrible damage, or put back a dismembered Philippines. The initialed MOA-AD already contains definitive and settled propositions between the GRP and the MILF, and all that is lacking are the signatures of the GRP and MILF representatives to make the MOA-AD a binding international agreement.[81] Under these circumstances, the petitions certainly present an actual justiciable controversy of transcendental importance to the nation. The forum for the resolution of any dispute between the GRP and the MILF under a signed MOA-AD will not be this Court but the International Court of Justice (ICJ), which is not bound to respect the Philippine Constitution. The MILF, under the sponsorship of any member of the Organization of Islamic Conference (OIC)[82] that recognizes the compulsory jurisdiction of the ICJ,[83] can bring the dispute to the ICJ. The OIC Special Envoy for the Peace Process in Southern Philippines, Ambassador Sayed Elmasry, who is also the Secretary-General of the OIC, is a signatory to the MOA-AD. Above the space reserved for his signature are the words "ENDORSED BY."

A party to the Statute of the ICJ, like the Philippines, is bound by the ICJ's determination whether the ICJ has jurisdiction over a dispute.[84] In deciding the issue of jurisdiction, the ICJ may or may not follow past precedents in the light of special circumstances of the case before it. The Philippines will be risking dismemberment of the Republic in the hands of an international tribunal that is not bound by the Philippine Constitution. More importantly, the BJE, represented by the MILF and endorsed by the OIC, may apply to be a party to the Statute of the ICJ and accept the compulsory jurisdiction of the ICJ.[85] A State that recognizes the compulsory jurisdiction of the ICJ has the right to sue before the ICJ any State that has accepted the same compulsory jurisdiction of the ICJ.[86] The fact that the BJE has all the attributes of a state, with the acknowledged power to enter into international treaties with foreign countries, gives the BJE the status and legal personality to be a party to a case before the ICJ. [87] In fact, by agreeing in the MOA-AD that the BJE, on its own, can enter into international treaties,[88] the Philippines admits and recognizes the international legal personality of the BJE, with the capacity to sue and be sued in international tribunals. In short, for this Court to wait for the signing of the MOA-AD before assuming jurisdiction will allow an international tribunal to assume jurisdiction over the present petitions, risking the dismemberment of the Republic. It is providential for the Filipino people that this Court issued the Temporary Restraining Order enjoining the signing of the MOA-AD in the nick of time on 4 August 2008. When the Court issued the TRO, the members of the GRP Panel were already on their way to Malaysia to sign the MOA-AD the following day, 5 August 2008, before representatives of numerous states from the OIC, Europe, North America, ASEAN and other parts of Asia. Indeed, public respondents should be thankful to this Court for saving them from inflicting an ignominious and irreversible catastrophe to the nation. Petitions Not Mooted The claim of respondents that the present petitions are moot because during the pendency of this case the President decided not to sign the MOA-AD, "in its present form or in any other form,"[89] is erroneous. Once the Court acquires jurisdiction over a case, its jurisdiction continues until final termination of the case.[90] The claim of respondents that the President never authorized the GRP

Panel to sign the MOA-AD[91] is immaterial. If the GRP Panel had no such authority, then their acts in initialing and in intending to sign the MOA-AD were in grave abuse of discretion amounting to lack or excess of jurisdiction, vesting this Court jurisdiction over the present petitions to declare unconstitutional such acts of the GRP Panel. Needless to say, the claim that the GRP Panel had no authority to sign the MOA-AD is a grave indictment of the members of the GRP Panel. At the very least this shows that the members of the GRP Panel were acting on their own, without following the instructions from the President as clearly laid down in the Memorandum of Instructions From The President dated 1 March 2001, which states in part: This Memorandum prescribes the guidelines for the Government Negotiating Panel (GPNP) for the peace negotiation process with the Moro Islamic Liberation Front (MILF):

1. The negotiations shall be conducted in accordance

with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.|

2. The negotiation process shall be pursued in line with the

national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned. 3. The objective of the GPNP is to attain a peace settlement that shall:

a. Contribute to the resolution of the root cause of the armed conflict, and to societal reform, particularly in Southern Philippines; b. Help attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful program of autonomy for Filipino Muslims, consistent with the Peace Agreement entered into by the GRP and the MNLF on 02 September 1996; and

c. Contribute to reconciliation and reconstruction in Southern Philippines. 4. The general approach to the negotiations shall include the following:

a First Nation, then all peoples of Mindanao belonging to the Malay race are the First Nations. If resistance to foreign beliefs is the criterion in declaring a First Nation, then the 18 Lumad groups in Mindanao are the First Nations. When asked during the oral arguments why the MOA-AD declares the Bangsamoros as the single "First Nation," the Solicitor General answered that "the MILF requested that they be considered a First Nation."[95] The GRP Panel should not readily agree to include in the text of the agreement, an official document, anything that the MILF Panel wants. Claims to historicity must be verified because historical inaccuracies have no place in a peace agreement that resolves a dispute rooted to a large extent in historical events. The Cost of Reparation Could Bankrupt the National Government The MOA-AD recognizes that the Bangsamoro's ancestral domain, homeland and historic territory cover the entire Mindanao, Sulu and Palawan areas.[96] While the MOA-AD recognizes "vested property rights,"[97] other than licenses or contracts to exploit natural resources which are revocable at will by the BJE, the MOA-AD requires the Government to provide "adequate reparation" to the Bangsamoro for the "unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization."[98] Such unjust dispossession includes not only the lands taken from the Bangsamoro since the arrival of the Spaniards in 1521, but also all the natural resources removed from such lands since 1521. In short, the Government must pay compensation to the BJE for all titled private lands, as well as all natural resources taken or extracted, in Mindanao, Sulu and Palawan. If the lands are still State owned -- like public forests, military and civil reservations, public school sites, public parks or sites for government buildings -- the Government must return the lands to the BJE. The MOA-AD further states, "Whenever restoration is no longer possible, the GRP shall take effective measures or adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties." The cost of reparation could bankrupt the Government. The Executive branch never consulted Congress, which exercises exclusively the power of the purse, about this commitment to pay "adequate reparation" to the BJE, a reparation that obviously has a gargantuan cost. Of course, under Philippine law Congress is not

d. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; e. Coordinated Third Party facilitation, where needed;

f. Consultation with affected communities and

sectors. (Emphasis supplied) Indisputably, the members of the GRP Panel had clear and precise instructions from the President to follow Philippine constitutional processes and to preserve the national sovereignty and territorial integrity of the Philippines.[92] The members of the GRP Panel failed to follow their basic instructions from the President, and in the process, they recklessly risked the near dismemberment of the Republic. Glaring Historical Inaccuracy in the MOA-AD The MOA-AD likewise contains a glaring historical inaccuracy. The MOA-AD declares the Bangsamoro as the single "First Nation."[93] The term "First Nations" originated in Canada.[94] The term refers to indigenous peoples of a territory, with the assumption that there are one or more subsequent nations or ethnic groups, different from the indigenous peoples, that settled on the same territory. Thus, in Canada, the United States, Australia and New Zealand, the white Europeans settlers are the subsequent nations belonging to a different ethnic group that conquered the indigenous peoples. In Canada, there is not a single First Nation but more than 600 recognized First Nations, reflecting the fact that the indigenous peoples belong to various "nation" tribes. In Mindanao, the Lumads who kept their indigenous beliefs, as well as those who centuries later converted to either Islam or Christianity, belong to the same ethnic Malay race. Even the settlers from Luzon and Visayas belong to the same ethnic Malay race. Declaring the Bangsamoros alone as the single "First Nation" is a historical anomaly. If ethnicity alone is the criterion in declaring

bound by this commitment of the Executive branch. Under international law, however, the Philippines is bound by such commitment of the Executive branch. There is no Disarmament under the MOA-AD Respondents have repeatedly claimed during the oral arguments that the final comprehensive peace agreement will lead to the disarmament of the MILF.[99]However, paragraph 8 on Governance of the MOA-AD allows the BJE "to build, develop and maintain its own x x x police and internal security force." Clearly, the BJE's internal security force is separate from its police. The obvious intention is to constitute the present MILF armed fighters into the BJE's internal security force. In effect, there will be no disarmament of the MILF even after the signing of the comprehensive peace agreement. The BJE can deploy its internal security force not only within the "core"[100] BJE territory, but also outside of the core BJE territory, that is, in ancestral lands of the Lumads that are located in Christian provinces, cities and municipalities. Under paragraphs 1 and 3 on Concepts and Principles of the MOA-AD, the Lumads and all their ancestral lands in Mindanao, Sulu and Palawan are made part of the BJE. Thus, the MOA-AD even allows the MILF to station permanently its MILF armed fighters within Christian provinces, cities and municipalities outside of the core BJE territory. Duty to Preserve Territorial Integrity and National Sovereignty Under the United Nations Declaration on the Rights of Indigenous Peoples, which is one of the documents referred to in the Terms of Reference of the MOA-AD, the right to self-determination of indigenous peoples does not mean a right to dismember or impair the territorial integrity or political unity of a sovereign and independent State like the Philippines. Article 46 of the Declaration states: Article 46 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the

territorial integrity or political unity of sovereign and independent States. (Emphasis supplied) Under international law, every sovereign and independent State has the inherent right to protect from dismemberment its territorial integrity, political unity and national sovereignty. The duty to protect the territorial integrity, political unity and national sovereignty of the nation in accordance with the Constitution is not the duty alone of the Executive branch. Where the Executive branch is remiss in exercising this solemn duty in violation of the Constitution, this Court, in the appropriate case as in the present petitions, must step in because every member of this Court has taken a sworn duty to defend and uphold the Constitution. A Final Word No one will dispute that the nation urgently needs peace in Mindanao. The entire nation will truly rejoice if peace finally comes to Mindanao. The Executive branch must therefore continue to pursue vigorously a peaceful settlement of the Moro insurgency in Mindanao. No nation can progress and develop successfully while facing an internal armed conflict.[101] However, any peace agreement that calls for amendments to the Constitution, --whatever the amendments may be, including the creation of the BJE -- must be subject to the constitutional and legal processes of the Philippines. The constitutional power of Congress to propose amendments to the Constitution, and the constitutional power of the people to approve or disapprove such amendments, can never be disregarded. The Executive branch cannot usurp such discretionary sovereign powers of Congress and the people, as the Executive branch did when it committed to amend the Constitution to conform to the MOA-AD. There must also be proper consultations with all affected stakeholders, where the Constitution or existing laws require such consultations. The law requires consultations for a practical purpose -- to build consensus and popular support for an initiative, in this case the peace agreement. Consultations assume greater importance if the peace agreement calls for constitutional amendments, which require ratification by the people. A peace agreement negotiated in secret, affecting the people's rights, lives and destinies, that is suddenly sprung on the people as a fait accompli, will face probable rejection in a plebiscite. In short, a peace agreement that amends the Constitution can be

lasting only if accepted by the people in accordance with constitutional and legal processes. Accordingly, I vote to GRANT the petitions and declare the MOAADUNCONSTITUTIONAL. SEPARATE CONCURRING AND DISSENTING OPINION LEONARDO-DE CASTRO, J.: I vote to consider the cases moot and academic considering the manifestation in the Memorandum, dated September 24, 2008, filed by the Office of the Solicitor General (OSG) that: "x x x The Executive Department has repeatedly and categorically stated that the MOA-AD will not be signed in its present form or in any other form. The Chief Executive has in fact gone to the extent of dissolving the Government of the Republic of the Philippines (GRP) Panel and has decided to take on a different tack and launch talks, no longer with rebels or rebel groups, but with more peace-loving community-based groups. x x x"[1] This development renders unnecessary a detailed analysis of each of the stipulations contained in the said MOA-AD, which have grave constitutional implications on the sovereignty, territorial integrity and constitutional processes of the Republic of the Philippines, all of which are non-negotiable when viewed in the context of the nature of the internal conflict it seeks to address and the state of our nation today. I believe this is a prudent move on the part of the Executive Department. By the very essence of our republican and democratic form of government, the outcome of our constitutional processes, particularly the legislative process and the constituent process of amending the constitution, cannot be predetermined or predicted with certainty as it is made to appear by the consensus points of the MOA-AD. Consequently, it is beyond the authority of any negotiating panel to commit the implementation of any consensus point or a legal framework which is inconsistent with the present Constitution or existing statutes. Moreover, our constitutional processes are well-defined by various provisions of the Constitution. The establishment of a political and territorial "space" under a so-called Bangsamoro Juridical Entity

(BJE) is nowhere to be found in the 1987 Constitution, which provides for the country's territorial and political subdivisions as follows: "The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided."[2] In the case of the autonomous regions, their creation is the shared responsibility of the political branches of the government and the constituent units affected. The Constitution is explicit in this regard, to wit: "The Congress shall enact an organic act for each autonomous regionwith the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this constitution and national law. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region."[3] (Emphasis supplied) If the establishment of autonomy requires the joint participation of Congress, the President, and of the people in the area affected, from the inception of the process of creation of an autonomous region, with more reason, the creation of the BJE an entity intended to have its own basic law to be adopted in accordance with an "associative arrangement" - which would imply, in legal terms, semi-independence if not outright independence cannot be negotiated without the participation of Congress and consultations with the people, residing not only in the area to be placed under the BJE but also in the rest of our country. Even with the participation of Congress and the consultation with stakeholders, the process at the onset must conform and

explicitly be subject to our Constitution. This is specially important as the unsigned MOA-AD stipulates a definite framework that threatens to erase, through the "policies, rules and regulations" and basic law of the BJE, the objective existence of over four hundred (400) years of development and progress of our people by unsettling private voluntary agreements and undoing the official acts of our government institutions performed pursuant to the Constitution and the laws in force during the said long period in our history, within the identified areas, to be carved out of a substantial portion of the national territory, and with only the "details", the "mechanisms and modalities for actual implementation" to be negotiated and embodied in a Comprehensive Compact. To my mind, this alarming possibility contemplated in the MOA-AD may be the cause of chaos and even greater strife for our brothers in the south, rather than bring about the intended peace. CONCURRING AND DISSENTING OPINION BRION, J.: The Petitions for Mandamus I concur with the ponencia's conclusion that the mandamus aspect of the present petitions has been rendered moot when the respondents provided this Court and the petitioners with the official copy of the final draft of the Memorandum of Agreement on Ancestral Domain (MOA-AD).[1] The Petitions for Prohibition I likewise concur with the implied conclusion that the "non-signing of the MOA-AD and the eventual dissolution of the Government of the Republic of the Philippines (GRP) panel mooted the prohibition aspect of the petitions," but disagree that the exception to the "moot and academic" principle should apply. The ponencia alternatively claims that the petitions have not been mooted. I likewise dissent from this conclusion. a. The Ponencia and the Moot and Academic Principle. As basis for its conclusion, the ponencia cites David v. MacapagalArroyo[2] for its holding that "`the moot and academic' principle not being a magical formula that automatically dissuades courts in resolving a case, it [the Court] will decide cases, otherwise moot and academic, if it feels that (a) there is a grave violation of the

Constitution;[3] (b) the situation is of exceptional character and paramount public interest is involved;[4] (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public;[5] and (d) the case is capable of repetition yet evading review."[6] In further support of its position on the mootness issue, the ponencia additionally cites the American ruling that "once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation."[7] b. The Context of the "Moot and Academic" Principle. The cited David v. Macapagal-Arroyo defines a "moot and academic" case to be"one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value." It goes on to state that "generally, courts decline jurisdiction over such cases and dismiss it on the ground of mootness."[8] This pronouncement traces its current roots from the express constitutional rule under the second paragraph of Section 1, Article VIII of the 1987 Constitution that "[j]udicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandable and enforceable..." This rule, which can conveniently be called the traditional concept of judicial power, has been expanded under the 1987 Constitution to include the power "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Whether under the traditional or the expanded concept, judicial power must be based on an actual justiciable controversy at whose core is the existence of a case involving rights which are legally demandable and enforceable. Without this feature, courts have no jurisdiction to act. Even a petition for declaratory relief[9]- a petition outside the original jurisdiction of this Court to entertain - must involve an actual controversy that is ripe for adjudication.[10] In light of these requirements, any exception that this Court has recognized to the rule on mootness (as expressed, for example, in the citedDavid v. Macapagal-Arroyo) is justified only by the implied recognition that a continuing controversy exists. Specifically involved in the exercise of judicial power in the present

petitions is the Court's power of judicial review, i.e., the power to declare the substance, application or operation of a treaty, international agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional.[11] A first requisite for judicial review is that there be an "actual case" calling for the exercise of judicial power. Fr. Joaquin Bernas, S.J., an eminent constitutional law expert, comments in this regard that This is a manifestation of the commitment to the adversarial system. Hence, the Court has no authority to pass upon issues of constitutionality through advisory opinions and it has no authority to resolve hypothetical or feigned constitutional problems or friendly suits collusively arranged between parties without real adverse interests. Nor will the Court normally entertain a petition touching on an issue that has become moot because then there would no longer be a `flesh and blood' case for the Court to resolve." [Citations deleted, emphasis supplied.][12] Other than the rule on actual case and standing (which aspect this separate opinion does not cover), jurisprudence holds that this Court will not touch upon the issue of constitutionality unless it is unavoidable or is the very lis mota.[13] As will be discussed in refuting the ponencia's various positions, this rule finds special application in the present case in light of the political sensitivity of the peace talks with the MILF and the issues it has placed on the agenda, namely, peace and order in Mindanao and the MILF's aspirations for freedom. My disagreement with the ponencia on the application of the exceptions to the mootness principle of David v. MacapagalArroyo is essentially based on how the mootness principle and its exceptions should be applied. While the mootness principle is "not a magical formula that automatically dissuades courts in resolving cases," so also should the exceptions not be considered magical formulas that should apply when the Court is minded to conduct a review despite the mootness of a petition. In other words, where an issue is moot on its face, the application of any of the exceptions should be subjected to a strict test because it is a deviation from the general rule. The Court should carefully test the exceptions to be applied from the perspectives both of legality and practical effects, and show by these standards that the issue absolutely requires to be resolved. I do not believe that the exceptions were so tested and considered under the ponencia.

c. The Ponencia's Positions Refuted i. Mootness and this Court's TRO A first point the ponencia stresses with preeminence in its discussion of the mootness issue is the observation that "the signing of the MOA-AD did not push through due to the court's issuance of a Temporary Restraining Order." The implication, it seems, is that the intervening events subsequent to the filing of the petition and the issuance of the temporary restraining order (TRO) specifically, the respondents' commitment that the MOA-AD shall not be signed in its present form or in any other form,[14] and the President's act of dissolving the GRP negotiating panel[15] - had no effect on the petitions because the signing of the MOA-AD had by then been stopped by our TRO. I find this a disturbing implication as the petitions for prohibition presented live controversies up to and beyond the issuance of this Court's TRO; they were rendered moot only by the above mentioned intervening events. By these intervening and unequivocal acts, the respondents effectively acknowledged that the MOA-AD should indeed not be signed as demanded by the petition. Thus, the TRO from this Court only immediately ensured that the MOA-AD would not be signed until this Court had spoken on the constitutional and statutory grounds cited by the petitions, but it was the respondents' acts that removed from controversy the issue of whether the MOA-AD should be signed or not. In simpler terms, after the respondents declared that the MOA-AD would not be signed, there was nothing left to prohibit and no rights on the part the petitioners continued to be at risk of violation by the MOA-AD. Thus, further discussion of the constitutionality of the MOA-AD now serves no useful purpose; as the discussion below will show, there may even be a considerable downside for our national interests if we inject another factor and another actor in the Mindanao conflict by ruling on the unconstitutionality of the MOA-AD. ii. Mootness and Constitutional Implications The ponencia posits as well that the MOA-AD has not been mooted because it has far-reaching constitutional implications and contains a commitment to amend and effect necessary changes to the existing legal framework. The same reason presented above

suffices to defuse the ponencia's fear about the adverse constitutional effects the MOA-AD may bring or might have brought: without a signed MOA-AD none of these feared constitutional consequences can arise. From another perspective, what the ponencia appears to fear are the constitutional violations and adverse consequences of a signed and effective MOA-AD. These fears, however, are relegated to the realm of speculation with the cancellation of the signing of the MOA-AD and the commitment that it shall not be signed in its present or any other form. Coupled with the subsequent dissolution of the GRP negotiating panel, the government could not have communicated and conveyed any stronger message, short of totally scuttling the whole peace process, that it was not accepting the points covered by the aborted MOA-AD. Government motivation for disavowing the aborted agreement is patently evident from Executive Order No. 3 that outlines the government's visions and intentions in the conduct of peace negotiations. That the GRP negotiating panel came up with a different result is a matter between the Executive and the negotiating panel and may be the immediate reason why the Executive's response was to forthwith dissolve the negotiating panel. iii. GRP Obligation to Discuss Ancestral Domain A consistent concern that runs through the ponencia is that the Philippines is bound under the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF in June 2001 to have an agreement on the Bangsamoro ancestral domain. This concern led the ponencia to conclude that the government decision not to sign the MOA-AD will not render the present petitions moot. In other words, the MOA-AD will recur and hence should be reviewed now. A basic flaw in this conclusion is its unstated premise that the Philippines is bound to come to an agreement on ancestral domain, thereby equating the commitment to discuss this issue with the obligation to have an agreement. To quote the ponencia'scited Tripoli Agreement of June 2001,[16] the provision on Ancestral Domain Aspect reads:

On the aspect of ancestral domain, the Parties, in order to address the humanitarian and economic needs of the Bangsamoro people and preserve their social and cultural heritage and inherent rights over their ancestral domain, agree that the same be discussed further by the Parties in their next meeting." [Emphasis supplied.] Under these terms, it is plain that the GRP's commitment extends only to the discussion of the ancestral domain issue. The agreement to discuss, however, does not bind the GRP to come to an agreement; the GRP is merely bound to try to reach an agreement or compromise. Implicit in this commitment is that the Philippines can always say "no" to unacceptable proposals or walk away from the discussion if it finds the proposed terms unacceptable. This option has not been removed from the Philippines under any of the duly signed agreements on the Mindanao peace process.I believe that this is the message that should come out in bold relief, not the ponencia's misreading of the June 2001 agreement. With the present MOA-AD effectively scuttled, the parties are back to the above quoted agreement under which the GRP bound itself to discuss ancestral domain with the MILF as part of the overall peace process. If the ponencia's fear relates to thesubstance of these future talks, these matters are not for this Court to rule upon as they belong to the realm of policy - a matter for other branches of government other than the Judiciary to determine. This Court can only speak with full force and authority on ripe, live, and actual controversies involving violations of constitutional or statutory rights.[17] As a rule, courts look back to past actions, using the Constitution, laws, rules and regulations as standards, to determine disputes and violations of constitutional, and statutory rights; the legislature and the executive, on the other hand, look forward to address present and future situations and developments, with their actions limited by existing constitutional, statutory and regulatory parameters that the courts are duty-bound to safeguard. Thus, if this Court can speak at all on the substance of future talks, this can only be by way of a reminder that the government's positions can only be within constitutional and statutory parameters and subject to the strict observance of required constitutional and statutory procedures if future changes to the constitution and to current statutes are contemplated. iv. Mootness and Paramount Public Interest

In justifying the application of the exception on the basis of paramount public interest, the ponencia noted that the MOA-AD involved a significant part of the country's territory and wideranging political modifications for affected local government units. It also claimed that the need for further legal enactments provides impetus for the Court to provide controlling principles to guide the bench, the bar, the public and the government and its negotiating entity.[18] Unfortunately, the ponencia's justifications on these points practically stopped at these statements. Suprisingly, it did not even have an analysis of what the paramount public interest is and what would best serve the common good under the failed signing of the MOA-AD. We note, as a matter of judicial experience, that almost all cases involving constitutional issues filed with this Court are claimed to be impressed with public interest. It is one thing, however, to make a claim and another thing to prove that indeed an interest is sufficiently public, ripe, and justiciable to claim the attention and action of this Court. It must be considered, too, that while issues affecting the national territory and sovereignty are sufficiently weighty to command immediate attention, answers and solutions to these types of problems are not all lodged in the Judiciary; more than not, these answers and solutions involve matters of policy that essentially rest with the two other branches of government under our constitutional system,[19]with the Judiciary being called upon only where disputes and grave abuse of discretion arise in the course applying the terms of the Constitution and in implementing our laws.[20] Where policy is involved, we are bound by our constitutional duties to leave the question for determination by those duly designated by the Constitution - the Executive, Congress, or the people in their sovereign capacity. In the present case, the peace and order problems of Mindanao are essentially matters for the Executive to address,[21] with possible participation from Congress and the sovereign people as higher levels of policy action arise. Its search for solutions, in the course of several presidencies, has led the Executive to the peace settlement process. As has been pointed out repetitively in the pleadings and the oral arguments, the latest move in the Executive's quest for peace - the MOA-AD - would have not been a good deal for the country if it had materialized. This Court, however, seasonably intervened and aborted the planned signing of the agreement. TheExecutive, for its part, found it wise and appropriate to fully heed the signals from our initial action and from the public outcry

the MOA-AD generated; it backtracked at the earliest opportunity in a manner consistent with its efforts to avoid or minimize bloodshed while preserving the peace process. At the moment, the peace and order problem is still with the Executive where the matter should be; the initiative still lies with that branch of government. The Court's role, under the constitutional scheme that we are sworn to uphold, is to allow the initiative to be where the Constitution says it should be.[22] We cannot and should not interfere unless our action is unavoidably necessary because the Executive is acting beyond what is allowable, or because it has failed to act in the way it should act, under the Constitution and our laws. My conclusion is in no small measure influenced by two basic considerations. First, the failure to conclude the MOA-AD as originally arranged by the parties has already resulted in bloodshed in Mindanao, with blood being spilled on all sides, third party civilians included. Some of the spilled blood was not in actual combat but in terror bombings that have been inflicted on the urban areas. To date, the bloodletting has showed no signs of abating. Lest we become confused in our own understanding of the issues, the problems confronting us may involve the socio-economic and cultural plight of our Muslim and our indigenous brothers, but at core, they are peace and order problems. Though others may disagree, I believe that socio-economic and cultural problems cannot fully be addressed while peace and order are elusive. Nor can we introduce purely pacific solutions to these problems simply because we are threatened with violence as an alternative. History teaches us that those who choose peace and who are willing to sacrifice everything else for the sake of peace ultimately pay a very high price; they also learn that there are times when violence has to be embraced and frontally met as the price for a lasting peace. This was the lesson of Munich in 1938 and one that we should not forget because we are still enjoying the peace dividends the world earned when it stood up to Hitler.[23] In Mindanao, at the very least, the various solutions to our multi-faceted problems should come in tandem with one another and never out of fear of threatened violence. Rather than complicate the issues further with judicial pronouncements that may have unforeseen or unforeseeable effects on the present fighting and on the solutions already being applied, this Court should exercise restraint as the fears immediately generated by a signed and concluded MOA-AD have

been addressed and essentially laid to rest. Thus, rather than proactively act on areas that now are more executive than judicial, we should act with calibrated restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be equated to the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we have judicially addressed the concerns posed with positive effects and we shall not hesitate to judicially act in the future, as may be necessary, to ensure that the integrity of our constitutional and statutory rules and standards are not compromised. If we exercise restraint at all, it is because the best interests of the nation and our need to show national solidarity at this point so require, in order that the branch of government in the best position to act can proceed to act. Second, what remains to be done is to support the government as it pursues and nurses the peace process back to its feet after the failed MOA-AD. This will again entail negotiation, not along the MOA-AD lines as this recourse has been tried and has failed, but along other approaches that will fully respect our Constitution and existing laws, as had been done in the 1996 MNLF agreement. In this negotiation, the Executive should be given the widest latitude in exploring options and initiatives in dealing with the MILF, the Mindanao peace and order problem, and the plight of our Muslim brothers in the long term. It should enjoy the full range of these options - from changes in our constitutional and statutory framework to full support in waging war, if and when necessary subject only to the observance of constitutional and statutory limits. In a negotiation situation, the worse situation we can saddle the Executive with is to wittingly or unwittingly telegraph the Executive's moves and our own weaknesses to the MILF through our eagerness to forestall constitutional violations. We can effectively move as we have shown in this MOA-AD affair, but let this move be at the proper time and while we ourselves observe the limitations the Constitution commonly impose on all branches of government in delineating their respective roles. v. The Need for Guidelines from this Court The cases of David v. Macapagal-Arroyo, Sanlakas v. Executive Secretary, and Lacson v. Perez presented a novel issue that uncovered a gray area in our Constitution: in the absence of a specific constitutional provision, does the President have the power to declare a state of rebellion/national emergency? If the answer is in the affirmative, what are the consequences of this declaration?

David v. Macapagal-Arroyo answered these questions and went on to further clarify that a declaration of a state of national emergency did not necessarily authorize the President to exercise emergency powers such as the power to take over private enterprises under Section 17, Article XII of the Constitution. Prior to this case, the correlation between Section 17, Article XII and the emergency powers of the President under Section 23 (2), Article VI has never been considered. In contrast, the present petitions and the intervening developments do not now present similar questions that necessitate clarification. Since the MOA-AD does not exist as a legal, effective, and enforceable instrument, it can neither be illegal nor unconstitutional. For this reason, I have not bothered to refute the statements and arguments about its unconstitutionality. I likewise see no reason to wade into the realm of international law regarding the concerns of some of my colleagues in this area of law. Unless signed and duly executed, the MOA-AD can only serve as unilateral notes or a "wish list" as some have taken to calling it. If it will serve any purpose at all, it can at most serve as an indicator of how the internal processes involving the peace negotiations are managed at the Office of the President. But these are matters internal to that Office so that this Court cannot interfere, not even to make suggestions on how procedural mistakes made in arriving at the aborted MOA-AD should be corrected. To be sure, for this Court to issue guidelines relating to unapplied constitutional provisions would be a useless exercise worse than the "defanging of paper tigers" that Mr. Justice Dante O. Tinga abhorred in David v. Macapagal-Arroyo.[24] In terms of the results of this exercise, the words of former Chief Justice Artemio Panganiban inSanlakas v. Executive Secretary are most apt - "nothing is gained by breathing life into a dead issue."[25] vi. The "Capable of Repetition but Evading Review" Exception The best example of the "capable of repetition yet evading review" exception to mootness is in its application in Roe v. Wade,[26] the U.S. case where the American Supreme Court categorically ruled on the legal limits of abortion. Given that a fetus has a gestation

period of only nine months, the case could not have worked its way through the judicial channels all the way up to the US Supreme Court without the disputed pregnancy being ended by the baby's birth. Despite the birth and the patent mootness of the case, the U.S. Supreme Court opted to fully confront the abortion issue because it was a situation clearly capable of repetition but evading review - the issue would recur and would never stand effective review if the nine-month gestation period would be the Court's only window for action. In the Philippines, we have applied the "capable of repetition but evading review" exception to at least two recent cases where the Executive similarly backtracked on the course of action it had initially taken. The earlier of these two cases - Sanlakas v. Executive Secretary[27] involved the failed Oakwood mutiny of July 27, 2003. The President issued Proclamation No. 427 and General Order No. 4 declaring a "state of rebellion" and calling out the armed forces to suppress the rebellion. The President lifted the declaration on August 1, 2003 through Proclamation No. 435. Despite the lifting, the Court took cognizance of the petitions filed based on the experience of May 1, 2001 when a similar "state of rebellion" had been imposed and lifted and where the Court dismissed the petitions filed for their mootness.[28] The Court used the "capable of repetition but evading review" exception "to prevent similar questions from reemerging ... and to lay to rest the validity of the declaration of a state of rebellion in the exercise of the President's calling out power, the mootness of the petitions notwithstanding." The second case (preeminently cited in the present ponencia) is David v. Macapagal-Arroyo. The root of this case was Proclamation No. 1017 and General Order No. 5 that the President issued in response to the conspiracy among military officers, leftist insurgents of the New People's Army, and members of the political opposition to oust or assassinate her on or about February 24, 2006. On March 3, 2006, exactly one week after the declaration of a state of emergency, the President lifted the declaration. In taking cognizance of the petitions, the Court justified its move by simply stating that "the respondents' contested actions are capable of repetition." Despite the lack of extended explanation in David v. MacapagalArroyo, the Court's actions in both cases are essentially correct because of the history of "emergencies" that had attended the administration of President Macapagal-Arroyo since she assumed

office. Thus, by the time of David v. Macapagal-Arroyo, the Court's basis and course of action in these types of cases had already been clearly laid. This kind of history or track record is, unfortunately, not present in the petitions at bar and no effort was ever exerted by the ponencia to explain why the exception should apply. Effectively, the ponencia simply textually lifted the exception from past authorities and superimposed it on the present case without looking at the factual milieu and surrounding circumstances. Thus, it simply assumed that the Executive and the next negotiating panel, or any panel that may be convened later, will merely duplicate the work of the respondent peace panel. This assumption is, in my view, purely hypothetical and has no basis in fact in the wayDavid v. Macapagal-Arroyo had, or in the way the exception to mootness was justified in Roe v. Wade. As I have earlier discussed,[29] the ponencia's conclusion made on the basis of the GRP-MILF Peace Agreement of June 2001 is mistaken for having been based on the wrong premises. Additionally, the pronouncements of the Executive on the conduct of the GRP negotiating panel and the parameters of its actions are completely contrary to what the ponencia assumed. Executive Order No. 3 (entitled Defining Policy and Administrative Structure for Government's Comprehensive Peace Efforts) sets out the government's visions and the structure by which peace shall be pursued. Thus, its Section 2 states The Systematic Approach to peace; Section 3, The Three Principles of the Comprehensive Peace Process; Section 4, The Six Paths to Peace; and Section 5(c)the Government Peace Negotiating Panels.[30] The Memorandum of Instructions from the President dated March 2001 to the Government Negotiating Panel, states among others that: 1. The negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines. 2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned.

xxx 4. The general approach to the negotiations shall include the following:

a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; b. Coordinated Third Party Facilitation, where needed;

Finally, let me clarify that the likelihood that a matter will be repeated does not mean that there will be no meaningful opportunity for judicial review[35] so that an exception to mootness should be recognized. For a case to dodge dismissal for mootness under the "capable of repetition yet evading review" exception, two requisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.
[36]

c. Consultations with affected communities and

sectors.[31] Under these clear terms showing the Executive's vision on how the peace process and the negotiations shall proceed, I believe that it is fallacious to assume that any renewed negotiation with the MILF will entail a repetition of the discarded MOA-AD. Understandably, it may be asked why the MOA-AD turned out the way it did despite the negotiating panel's clear marching orders. The exact answer was never clarified during the oral arguments and I can only speculate that at some point, the negotiating panel lost its bearings and deviated from the clear orders that are still in force up to the present time. As I mentioned earlier,[32] this may be the reason why the negotiating panel was immediately dissolved. What is important though, for purposes of this case and of the peace and order situation in Mindanao, is that the same marching orders from the Executive are in place so that there is no misunderstanding as to what that branch of government seeks to accomplish and how it intends this to be done. The fact that an issue may arise in the future - a distinct possibility for the ponencia - unfortunately does not authorize this Court to render a purely advisory opinion, i.e., one where a determination by this Court will not have any effect in the "real world". A court's decision should not be any broader than is required by the precise facts. Anything remotely resembling an advisory opinion or a gratuitous judicial utterance respecting the meaning of the Constitution must altogether be avoided.[33] At best, the present petitions may be considered to be for declaratory relief, but that remedy regrettably is not within this Court's original jurisdiction, as I have pointed out earlier.[34]

The time constraint that justified Roe v. Wade, to be sure, does not inherently exist under the circumstances of the present petition so that judicial review will be evaded in a future litigation. As this Court has shown in this case, we can respond as fast as the circumstances require. I see nothing that would bar us from making a concrete ruling in the future should the exercise of our judicial power, particularly the exercise of the power of judicial review, be justified. vii. The Right to Information The petitions for mandamus essentially involved the demand for a copy of the MOA-AD based on the petitioners' right to information under Section 7, Article III of the 1987 Constitution. In light of the commonly-held view that the mandamus aspect of the petitions is now moot, focus now shifts to the right to consultation (an aspect of the constitutional right to information and as guaranteed under the Indigenous People's Rights Act[37] and the Local Government Code)[38] that the petitioners now capitalize on to secure the declaration of the nullity of the MOA-AD. I note in this regard though that it is not so much the lack of consultations that the petitioners are rallying against, but the possibility under the MOA-AD's terms that they may be deprived of their lands and properties without due process of law (i.e., that the lumads' ancestral domains will be included in and covered by the Bangsamoro Juridical Entity [BJE] without the benefit of prior consultations).[39] Thus, the equation they present to this Court is: lack of consultations = deprivation of property without due process of law. The short and quick answer to this proprietary concern is that the

petitioners' claim is premature. With the MOA-AD unsigned, their fears need not materialize. But even with a signed MOA-AD, I do not believe that the immediate deprivation they fear and their due process concerns are valid based alone on the terms of this aborted agreement. Under these terms, the MOA-AD's execution and signing are but parts of a series of acts and agreements; its signing was not be the final act that would render its provisions operative. The MOA-AD itself expressly provides that the mechanisms and modalities for its implementation will still have to be spelled out in a Comprehensive Compact and will require amendments to the existing legal framework. This amendatory process, under the Constitution, requires that both Congress and the people in their sovereign capacity be heard. Thus, the petitioners could still fully ventilate their views and be heard even if the MOA-AD had been signed. It is in the above sense that I doubt if the ponencia's cited case - Chavez v. PEA[40]- can serve as an effective authority for the ponencia's thesis: that the process of negotiations as well as the terms of the MOA-AD should have been fully disclosed pursuant to the people's right to information under Section 7, Article III and the government's duty to disclose under Section 28, Article II of the Constitution. TheChavez case dealt with a commercial contract that was perfected upon its signing; disclosure of information pertaining to the negotiations was therefore necessary as an objection after the signing would have been too late. As outlined above, this feature of a commercial contract does not obtain in the MOA-AD because subsequent acts have to take place before the points it covers can take effect. But more than this, the contract involved in Chavez and the purely commercial and proprietary interests it represents cannot simply be compared with the MOA-AD and the concerns it touched upon - recognition of a new juridical entity heretofore unknown in Philippine law, its impact on national sovereignty, and its effects on national territory and resources. If only for these reasons, I have to reject the ponencia's conclusions touching on the right to information and consultations. My more basic disagreement with the ponencia's treatment of the right to information and the duty of disclosure is its seeming readiness to treat these rights as stand-alone rights that are fully executory subject only to the safeguards that Congress may by law interpose. In the first place, it was not clear at all from the ponencia's cited constitutional deliberations that the framers intended the duty of disclosure to be immediately executory. The cited deliberation

recites: MR. DAVIDE: I would to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executory provision? It would require a legislation by Congress to implement? MR. OPLE: Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interests are modified by the clause "as may be provided by law." MR. DAVIDE: But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground of national interest? MR. OPLE: Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy. [41] In my reading, while Mr. Davide was sure of the thrust of his question, Mr. Ople was equivocal about his answer. In fact, what he actually said was that his original intention was for the provision to be self-executing, but Mr. Regalado introduced an amendment. His retort to Mr. Davide's direct question was a cryptic one and far from the usual Ople reply - that the right should immediately influence the climate of public affairs, and that Congress can no longer revoke it. Mr. Ople's thinking may perhaps be better understood if the exchanges in another deliberation - on the issue of whether disclosure should extend to the negotiations leading to the consummation of a state transaction - is considered. The following exchanges took place: MR. SUAREZ: And when we say `transactions' which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE: The `transactions' used here, I suppose is generic and

therefore, it can cover both steps leading to a contract and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ: This contemplates inclusion of negotiations leading to the consummation of the transaction. MR. OPLE: Yes, subject only to reasonable safeguards on the national interest. [42] Thus, even if Mr. Ople did indeed mean that the constitutional provisions on the right to information and the duty of disclosure may immediately be effective, these provisions have to recognize, other than those expressly provided by Congress, "reasonable safeguards on the national interest." In constitutional law, this can only refer to safeguards inherent from the nature of the state transaction, the state interests involved, and the power that the state may bring to bear, specifically, its police power. Viewed in this light, the duty to disclose the various aspects of the MOA-AD should not be as simplistic as the ponencia claims it to be as this subject again opens up issues this Court has only began to deal with in the Neri petition[43] and the JPEPA controversy.[44] Of course, this is not the time nor the case for a full examination of the constitutional right to information and the government's duty to disclose since the constitutionality of the MOA-AD is a dead issue. As my last point on a dead issue, I believe that the ponencia did not distinguish in its discussion between the disclosure of information with respect to the peace process in general and the MOA-AD negotiation in particular. I do not believe that these two matters can be interchanged and discussed from the prisms of information and disclosure as if they were one and the same. The peace process as embodied in E.O. No. 3 relates to the wider government effort to secure peace in Mindanao through various offices and initiatives under the Office of the President interacting with various public and private entities at different levels in Mindanao. The peace negotiation itself is only a part of the overall peace process with specifically named officials undertaking this activity. Thus, the consultations for this general peace process are necessarily wider than the consultations attendant to the negotiations proper that has been delegated to the GRP Negotiating Panel. The dynamics and depth of consultations and disclosure with respect to these processes should, of course, also be different considering their inherently varied natures. This confusion, I believe, renders the validity of the ponencia's discussions about the violation of the right to information and the government's duty of disclosure highly doubtful.

Conclusion The foregoing reasons negate the existence of grave abuse of discretion that justifies the grant of a writ of prohibition. I therefore vote to DISMISS the consolidated petitions.

SEPARATE OPINION AZCUNA, J.: I agree with the ponencia but I hold the view that, had the MOA-AD been signed as planned, it would have provided a basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral declaration made before representatives of the international community with vital interests in the region. Whether the case of Australia v. France[1] or that of Burkina Faso v. Mali,[2] is the one applicable, is not solely for this Court to decide but also for the international court where the Philippines could be sued. While we may agree that the Philippines should not be considered bound, the international court may rule otherwise. There is need to consult the people before risking that kind of outcome. On this point, Martin Dixon and Robert McCorquodale, in their Cases and Materials on International Law, observe: B. Unilateral statements Nuclear Test Cases (Australia v. France and New Zealand v. France) Merits ICJ Rep. 1974 253, International Court of Justice Australia and New Zealand brought proceedings against France arising from nuclear tests conducted by France in the South Pacific. Before the Court had an opportunity to hear in full the merits of the case, statements were made by French authorities indicating that France would no longer conduct atmospheric nuclear tests. The court held by nine votes to six that, due to these statements by France, the claim of Australia and New Zealand no longer had any object and so the Court did not have to decide the issues in the case.

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, not even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.... xxx NOTES: 1. It is very rare that a Court will find that a unilateral statement will bind a State. In Frontier Dispute Case (Burkina Faso v. Mali) 1986 ICJ Rep 554, a Chamber of the International Court of Justice held that a statement by the President of Mali at a press conference did not create legal obligations on Mali, especially as `The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.' (para. 39).[3] Finally, precedents are not strictly followed in international law, so that an international court may end up formulating a new rule out of the factual situation of our MOA-AD, making a unilateral declaration binding under a new type of situation, where, for instance, the other party is not able to sign a treaty as it is not yet a State, but the declaration is made to a "particular recipient" and "witnessed" by a host of sovereign States. As to the rest, I concur. SEPARATE OPINION Tinga, J.: As a matter of law, the petitions were mooted by the unequivocal

decision of the Government of the Philippines, through the President, not to sign the challenged Memorandum of Agreement on Ancestral Domain (MOA-AD). The correct course of action for the Court is to dismiss the petitions. The essential relief sought by the petitioners-a writ of prohibition under Rule 65-has already materialized with the Philippine government's voluntary yet unequivocal desistance from signing the MOA-AD, thereby depriving the Court of a live case or controversy to exercise jurisdiction upon. At the same time, I deem it impolitic to simply vote for the dismissal the cases at bar without further discourse in view of their uniqueness in two aspects. At the center is an agreement and yet a party to it was not impleaded before it was forsaken. And while the unimpleaded party is neither a state nor an international legal person, the cases are laden with international law underpinnings or analogies which it may capitalize on to stir adverse epiphenomenal consequences. According to news reports, the Moro Islamic Liberation Front (MILF) has adopted the posture that as far as it is concerned, the MOA-AD is already effective, and there may be indeed a tenuous linkage between that stance and the apparent fact that the MOA-AD, though unsigned, bears the initials of members of the Philippine negotiating panel, the MILF negotiating panel and the peace negotiator of the Malaysian government. These concerns warrant an extended discussion on the MOA-AD, even if the present petitions are moot and academic. I. It is a bulwark principle in constitutional law that an essential requisite for a valid judicial inquiry is the existence of an actual case or controversy. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree that is conclusive in character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.[1] The exercise of the power of judicial review depends upon the existence of a case or controversy. Consequently, if a case ceases to be a lively controversy, there is no justification for the exercise of the power, otherwise, the court would be rendering an advisory opinion should it do so.[2]

We held in Gancho-on v. Secretary of Labor:[3] It is a rule of universal application, almost, that courts of justice constituted to pass upon substantial rights will not consider questions in which no actual interests are involved; they decline jurisdiction of moot cases. And where the issue has become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no practical use or value.There is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the petition. In the recent ruling in Suplico v. NEDA,[4] the President officially desisted from pursuing a national government project which was challenged before this Court. The Court was impelled to take mandatory judicial notice[5] of the President's act, and consequently declare the pending petitions as moot and academic. The Court, through Justice Reyes, held: Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciary's role of strengthening political stability indispensable to progress and national development.Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole.Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do.This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents. Judicial power presupposes actual controversies, the very antithesisof mootness.In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues.Where there is no more live subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement. Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.[6] The live controversy relied upon by the petitions was the looming accession by the Philippine government to the MOA-AD, through a formal signing ceremony that was to be held at Kuala Lumpur, Malaysia, on 5 August 2008. This ceremony was prevented when

the Court issued a Temporary Restraining Order on 4 August 2008, yet even after the TRO, it appeared that the Government then was still inclined to sign the MOA-AD after the legal obstacles had been cleared. However, on 1 September 2008, the Government through the Office of the Solicitor General, filed a Compliance, manifesting the pronouncement of Executive Secretary Ermita that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA." This declared intent was repeated in a Manifestation dated 4 September 2008, and verbally reiterated during the oral arguments before this Court. In addition, the President herself publicly declared, as recently as on 2 October 2008, that regardless of the ruling of the Supreme Court on these petitions, her government will not sign the MOA-AD, "in the light of the recent violent incidents committed by MILF lawless groups."[7] Clearly following Suplico the Court has no choice but to take mandatory judicial notice of the fact that the Government will not sign or accede to the MOA-AD and on this basis dismiss to the petitions herein. Thus, the Court is left with petitions that seek to enjoin the Government from performing an act which the latter had already avowed not to do. There is no longer a live case or controversy over which this Court has jurisdiction. Whatever live case there may have been at the time the petitions were filed have since become extinct. Admittedly, there are exceptions to the moot and academic principle. The fact that these exceptions are oft-discussed and applied in our body of jurisprudence reflects an unbalanced impression, for most petitions which are rendered moot and academic are usually dismissed by way of unsigned or minute resolutions which are not published in the Philippine Reports or the Supreme Court Reports Annotated. Still, the moot and academic principle remains a highly useful and often applied tool for the Court to weed out cases barren of any current dispute. Indeed, even with those exceptions in place, there is no mandatory rule that would compel this Court to exercise jurisdiction over cases which have become academic. For the exceptions to apply, it would be necessary, at bare minimum, to exhibit some practical utilitarian value in granting the writs of prohibition sought. Otherwise, the words of the Court would be an empty exercise of rhetoric that may please some ears, but would not have any meaningful legal value. A usual exception to the moot and academic principle is where the case is capable of repetition yet evading review. A recent example

where the Court applied that exception was in Sanlakas v. Executive Secretary,[8] which involved the power of the President to declare a state of rebellion. Therein, the Court decided to exercise jurisdiction "[t]o prevent similar questions from re-emerging."[9] It was clear inSanlakas that the challenged act, the declaration by the President of a state of rebellion was a unilateral act that was clearly capable of repetition, it having actually been accomplished twice before. Contrast that situation to this case, where the challenged act is not a unilateral act that can be reproduced with ease by one person or interest group alone. To repeat the challenged act herein, there would have to be a prolonged and delicate negotiation process between the Government and the MILF, both sides being influenced by a myriad of unknown and inconstant factors such as the current headlines of the day. Considering the diplomatic niceties involved in the adoption of the MOA-AD, it is well-worth considering the following discussion on the complexity in arriving at such an agreement: The making of an international agreement is not a simple single act. It is rather a complex process, requiring performance of a variety of different functions or tasks by the officials of a participating state. Among the functions which must be distinguished for even minimal clarity are the following: (1) the formulation of rational policies to guide the conduct of negotiations with other states; (2) the conduct of negotiations with the representatives of other states; (3) the approval of an agreement for internal application within the state, when such internal application is contemplated; (4) the approval of an agreement for the external commitment of the state; (5) the final utterance of the agreement as the external commitment of the state to other states. [10] Assuming that the act can be repeated at all, it cannot be repeated with any ease, there being too many cooks stirring the broth. And further assuming that the two sides aree able to negotiate a new MOA-AD, it is highly improbable that it would contain exactly the same provisions or legal framework as the discarded MOA-AD. II.

Even though the dismissal of these moot and academic petitions is in order in my view, there are nonetheless special considerations that warrant further comment on the MOA-AD on my part. As intimated earlier, the MILF has adopted the public position that as far as it is concerned, the MOA-AD has already been signed and is binding on the Government. To quote from one news report: "The MILF leadership, which is the Central Committee of the MILF, has an official position. that the memorandum of agreement on the Bangsamoro Ancestral Domain has been signed," said Ghadzali Jaafar, MILF vice chairman for political affairs. xxx Jaafar said the MILF considers the MOA binding because its draft agreement was "initialed" last July 27 in Kuala Lumpur by Rodolfo Garcia, government chief negotiator; Mohagher Iqbal, MILF chief negotiator; Hermogenes Esperon, presidential adviser on the peace process, and Datuk Othman bin Abdulrazak, chief peace facilitator for the Malaysian government. "Our position is that after initialing, both parties initialed the MOA, that is a signing," Jaafar said. Jaafar said the scheduled signing yesterday in Kuala Lumpur was merely "ceremonial and a formality, in a way to announce to all throughout the world that a memorandum of agreement has been signed but actually the signing, actual signing was done." "So it's a done deal as far as the MILF is concerned," he said. Jaafar said the MILF and the government set a ceremonial signing of the MOA "because this is a very important document." "We want to be proud of it we want to announce it throughout the world that there is a memorandum of agreement between the Moro Islamic Liberation Front and the government of the Republic of the Philippines." He said the MILF expects the government to abide by the MOA "because this agreement is binding on both parties."[11]

It appears that the persons who initialed the MOA-AD were Philippine Presidential Peace Adviser Hermogenes Esperon, Jr., Philippine government peace negotiator Rodolfo Garcia, MILF chief negotiator Mohagher Iqbal, and Datuk Othman bin Abdulrazak, chief peace facilitator of the Malaysian government.[12] The MILF is not a party to these petitions, and thus its position that the MOA-AD was in fact already signed through the initials affixed by representatives of the Philippine and Malaysian governments and the MILF has not been formally presented for the Court for adjudication. In an earlier submission to the Court, I discussed the position of the MILF from the following perspective: There is the danger that if the petitions were dismissed for mootness without additional comment, it will be advocated by persons so interested as to make the argument that the intrinsic validity of the MOA-AD provisions has been tacitly affirmed by the Court. Moreover, the unqualified dismissal of the petitions for mootness will not preclude the MILF from presenting the claim that the MOA-AD has indeed already been signed and is therefore binding on the Philippine government. These concerns would especially be critical if either argument is later presented before an international tribunal, that would look to the present ruling of this Court as the main authority on the status of the MOA-AD under Philippine internal law. The use of municipal law rules for international judicial and arbitral procedure has been more common and more specific than any other type of application.[13] The International Court of Justice has accepted res judicata as applicable to international litigation.[14] The following observations by leading commentators on international law should give pause for thought: It is clear that, in general, judicial decisions (of national tribunals) in cases involving international law, domestic as well as international, can and will be cited for their persuasiveness by parties to an international legal dispute, the decisions of courts and other tribunals often being seen to affirm or announce a treaty-based rule or interpretation, a tenet of customary international law, or a general principle of law, international or domestic. Judicial decisions are seen as trustworthy evidence of what the law really is on a given subject; and this point is verified by most of the leading international adjudicative and arbitral decisions that have helped to lay the foundations of, and otherwise articulate, the

substance of international law.[15] (Words in parenthesis and emphasis supplied) Thus, in my earlier submission, I stated that should this matter ever be referred to an international tribunal for adjudication, it is highly probable that a ruling based on mootness alone without more would be taken as an indicative endorsement of the validity of the MOA under Philippine law. That misimpression should be rectified for purposes that transcend the ordinary adjudicative exercise, I stressed. Firstly, is the MILF correct when it asserted that the MOA-AD may already be considered as binding on the Philippine government? Reference to the initialed but unsigned copy of the MOA-AD is useful.[16] There are three distinct initials that appear at the bottom of each and every page of the 11-page MOA-AD: that of Garcia and Esperon for the Philippine negotiating panel, and that of Iqbal for the MILF. Page 11, the signature page, appears as follows: IN WITNESS WHEREOF, the undersigned being the representatives of the Parties hereby affix their signatures. Done this 5th day of August, 2008 in Kuala Lumpur, Malaysia. FOR THE GRP FOR THE MILF

(unsigned) RODOLFO C. GARCIA Chairman GRP Peace Negotiating Panel

(unsigned) MOHAGHER IQBAL Chairman} MILF Peace Negotiating Panel

WITNESSED BY:

(unsigned) DATUK OTHMAN BIN ABD RAZAK Special Adviser to the Prime Minister

ENDORSED BY:

(unsigned) AMBASSADOR SAYED ELMASRY

document. Initialization was accomplished on 27 July 2008, while signature was to have been performed on 5 August 2008. The initialing was witnessed by only one person, Razak, while the signing of the MOA-AD was to have been witnessed by the respective heads of the Foreign Affairs departments of the Philippines and Malaysia. Clearly, signing and initialing was not intended to be one and the same. Second, it is unequivocal from the document that the MOA-AD was to take effect upon the affixation of signatures on 5 August 2008 in Kuala Lumpur, Malaysia, and not through the preliminary initialing of the document on 27 July 2008. Under our domestic law, consent of the parties is an indispensable element to any valid contract or agreement.[17] The three stages of a contract include its negotiation or preparation, its birth or perfection, and its fulfillment or consummation. The perfection of the contract takes place only upon the concurrence of its three essential requisites - consent of the contracting parties, object certain which is the subject matter of the contract, and cause of the obligation which is established.[18] Until a contract is perfected, there can be no binding commitments arising from it, and at any time prior to the perfection of the contract, either negotiating party may stop the negotiation.[19] Consent is indubitably manifested through the signature of the parties. That the Philippine government has not yet consented to be bound by the MOA-AD is indubitable. The parties had agreed to a formal signature ceremony in the presence of the Secretary of Foreign Affairs, the alter ego of the President of the Philippines. The ceremony never took place. The MOA-AD itself expresses that consent was to manifested by the affixation of signatures, not the affixation of initials. In addition, the subsequent announcement by the President that the Philippine Government will not sign the MOAAD further establishes the absence of consent on the part of the Philippines to the MOA-AD. Under domestic law, the MOA-AD cannot receive recognition as a legally binding agreement due to the absence of the indispensable requisite of consent to be bound. Nonetheless, it is unlikely that the MILF or any other interested party will seek enforcement of the MOA with the Philippine courts. A more probable recourse on their part is to seek enforcement of the MOA before an international tribunal. Could the Philippines be considered as being bound by the MOA under international law? Preliminarily, it bears attention that Justice Morales has

Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines IN THE PRESENCE OF: (unsigned) DR. ALBERTO G. ROMULO DATO' SERI UTAMA Secretary of Foreign Affairs Republic of the Philippines (unsigned) DR. RAIS BIN YATIM Minister of Foreign Affairs Malaysia

Initialed by Sec. Rodolfo Garcia (initialed) Mohagher Iqbal (initialed)

Sec. Hermogenes Esperon (initialed)

Witnessed by:

Datuk Othman bin Abd Razak (initialed) Dated 27 July 2008 Two points are evident from the above-quoted portion of the MOAAD. First, the affixation of signatures to the MOA-AD was a distinct procedure from the affixation of initials to the pages of the

exhaustively and correctly debunked the proposition that the MOAAD can be deemed a binding agreement under international law, or that it evinces a unilateral declaration of the Philippine government to the international community that it will grant to the Bangsamoro people all the concessions stated in the MOA-AD. It would thus be improper to analyze whether the MOA-AD had created binding obligations through the lens of international law or through an instrument as the Vienna Convention on the Law of Treaties, as it should be domestic law alone that governs the interpretation of the MOA-AD. Nonetheless, even assuming that international law principles can be utilized to examine that question, it is clear that the MILF's claim that the MOA-AD is already binding on the Philippine government will not prevail. The successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text.[20] Once a written text is agreed upon and adopted, it is either signed, or initialed and subsequently signed by the diplomats and then submitted to the respective national authorities for ratification. [21] Once a treaty has been adopted, the manner in which a state consents to be bound to it is usually indicated in the treaty itself. [22] Signature only expresses consent to be bound when it constitutes the final stage of a treaty-making process.[23] Reisman, Arsanjani, Wiessner & Westerman explain the procedure in the formation of international agreements, including the distinction between initialing and signing: Treaties are negotiated by agents of states involved. Usually, once the agents agree on a text, the authenticity of this agreed-upon mutual commitment is confirmed by the agents placing their initials on the draft agreement ("initialing"). Their principals, usually the heads of state or their representatives, then sign the treaty within a time period specified in the treaty, and submit it to internal processes, usually legislative authorities, for approval. Once this approval is secured, the heads of state express the consent of their state to be bound by depositing an instrument of ratification with the depositary power (in the case of a multilateral treaty) or with the other state party (in the case of a bilateral treaty). In the case of a multilateral treaty not signed in time, a state can still validly declare its consent to be bound by submitting an instrument of accession.[24]

This discussion is confirmatory that initialing is generally not the act by which an international agreement is signed, but a preliminary step that confirms the authenticity of the agreed-upon text of the agreement. The initialing of the agreement reflects only the affirmation by the negotiating agents that the text of the prospective agreement is authentic. It is plausible for the negotiating agents to have initialed the agreement but for the principal to later repudiate the same before signing the agreement. Article 12(2)(a) of the Vienna Convention on the Law of Treaties does provide that "the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed." At bar, it is evident that there had been no agreement that the mere initialing of the MOA-AD would constitute the signing of the agreement. In fact, it was explicitly provided in the MOA-AD that the signing of the agreement would take place on a date different from that when the document was initialed. Further, a formal signing ceremony independent of the initialing procedure was scheduled by the parties. The fact that the MOA-AD reflects an initialing process which is independent of the affixation of signatures, which was to be accomplished on a specific date which was days after the MOA-AD was initialed, plainly indicates that the parties did not intend to legally bind the parties to the MOA through initialing. There is no cause under international law to assume that the MOA-AD, because it had been initialed, was already signed by the Philippine Government or the MILF even. III. The position of the MILF that the MOA-AD already creates binding obligations imposable on the Government cannot ultimately be sustained, even assuming that the initialing of the document had such binding effect. That position of the MILF supposes that the provisions of the MOA-AD are intrinsically valid under Philippine law. It takes no inquiry at great depth to be enlightened that the MOA-AD is incongruous with the Philippine Constitution. The Constitution establishes a framework for the administration of government through political subdivisions. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays.[25] In addition,

there shall be autonomous regions in Muslim Mindanao and the Cordilleras, in accordance with respective organic acts enacted by Congress.[26] The Constitution has adopted decentralization as a governing principle with respect to local government rule, and this especially holds true with respect to the autonomous regions. As we explained in Disomangcop v. DPWH:[27] Regional autonomy is the degree of self-determination exercised by the local government unit vis--vis the central government. In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community's internal decision-making processes and the management of collective matters by themselves. If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an end--that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected--its continuing validity is more easily perceived. Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government. The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs. In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the

government and pave the way for the unhampered implementation of the development programs in the region. xxx[28] At the same time, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."[29] At present, the constitutional mandate of local autonomy for Muslim Mindanao has already been implemented. Republic Act No. 6734 (R.A. 6734), entitled"An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao,"was enacted and signed into law on 1 August 1989.The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government. The year 2001 saw the passage of Republic Act No. 9054, entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended." Rep. Act No. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government. Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao, even one that may seek to accommodate the terms of the MOA-AD. Nonetheless, the paramount requirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the Constitution and its parameters for regional autonomy. The following provisions from Article X of the Constitution spell out the scope and limitations for the autonomous regions in Mindanao and the Cordilleras: Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive

department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority o the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Sec. 20. Within its territorial and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government. The autonomous regional government to be established through the organic act consists of the executive and legislative branches of government, both of which are elective. With respect to the judicial branch, the Constitution authorizes the organic acts to provide for special courts with jurisdiction limited over personal, family and property law. The scope of legislative powers to be exercised by the autonomous legislative assembly is limited to the express grants under Section 20, Article X. The national government retains responsibility over the defense and security of the autonomous regions. In addition, under Section 17, Article X, "[a]ll powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government."

The MOA-AD acknowledges that the Bangsamoro Juridical Entity (BJE) shall have authority and jurisdiction over the territory defined in the agreement as the ancestral domain of the Bangsamoro people. For the BJE to gain legal recognition under the Constitution, it must be identifiable as one of the recognized political subdivisions ordained in the Constitution. That is not the case. In fact, it is apparent that the BJE would have far superior powers than any of the political subdivisions under the Constitution, including the autonomous regional government for Muslim Mindanao. The powers of government extended to the BJE are well in excess than that which the Constitution allocates to the autonomous regional government for Muslim Mindanao. For example, it was agreed upon in the MOA that: [T]he BJE shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society...[30] Under the Constitution, the extent through which the autonomous regional government could establish a judicial system was confined to the extent of courts with jurisdiction over personal, property and family law.[31] Obviously, the MOA-AD intends to empower the BJE to create a broader-based judicial system with jurisdiction over matters such as criminal law or even political law. This provision also derogates from the authority of the constitutional commissions, most explicitly the Civil Service Commission (CSC) and the Commission on Elections (COMELEC). The CSC administers the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government.[32] Yet the MOAAD would empower the BJE to build, develop and maintain its own civil service. The BJE is likewise authorized to establish its own electoral institutions. Yet under the Constitution, it is the COMELEC which has the exclusive power to enforce and administer election laws.[33] Much of the MOA-AD centers on agreements relating to the exploitation of the economic resources over the proposed Bangsamoro homeland. The BJE is vested with jurisdiction, power and authority over land use, development, utilization, disposition and exploitation of natural resources within that territory. To that end, the BJE is empowered "to revoke or grant forest concessions,

timber license, contracts or agreements in the utilization and exploitation of natural resources."[34] One provision of the MOA-AD makes it certain that it is the BJE which has exclusive jurisdiction in the exploitation of natural resources, particularly those utilized in the production of energy: Jurisdiction and control over, and the right of exploring for, exploiting, producing and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore, is vested in the Bangsamoro juridical entity as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.[35] These powers, which are unavailable to any of the political subdivisions, are reserved under the Constitution to the Republic as the owner of all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources.[36] As a corollary to the BJE's power over the exploitation of natural resources, the MOA-AD accords it freedom "to enter into any economic cooperation and trade relations with foreign countries," including "the option to establish and open Bangsamoro trade mission in foreign countries with which it has economic cooperation agreements."[37]Such a "freedom" is contrary to the longestablished principle that "[i]n our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations."[38] The MOA-AD even assures that "the Central Government shall take necessary steps to ensure the Bangsamoro juridical entity's participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations."[39] These terms effectively denote a concession on the part of the Republic of the Philippines of a segregate legal personality to the BJE before international fora. It bears reminder that regional autonomy under Article X of the Constitution remains "within the framework of this Constitution and

the national sovereignty as well as territorial integrity of the Republic of the Philippines". These provisions of the MOA-AD are extra-constitutional and diminish national sovereignty as they allocate to the BJE powers and prerogatives reserved under the Constitution to the State. Clearly, the framework of regional government that premises the MOA-AD is unworkable within the context of the Constitution. IV. A member of the GRP Peace Panel, Atty. Sedfrey Candelaria, had admitted to the Court during the oral arguments held on 29 August 2008 that the implementation of the MOA-AD would require amendments to the Constitution. That admission effectively concedes that the MOA-AD is inconsistent with the Constitution, and thus cannot acquire valid status under Philippine law. It was evident thought on the part at least of the Philippine negotiating panel, that the price for peace in Mindanao involved in part, the amendment of the Philippine Constitution. There is nothing theoretically wrong with that notion, but because that choice is the most fundamental one the sovereign people can adopt, any binding commitment to enact charter change undertaken by an agent of government must be intensely scrutinized. Any legally binding commitment to amend the Constitution can only come from the political institutions and the sovereign people who are empowered by the charter to amend the Constitution. The President nor any other member or office of the executive branch does not have the power to effect changes to the Constitution even if he wanted to in the paramount interest of the country and of the people. Any commitment to any entity on the part of the President or his political appointees to amend the Constitution is inherently ultra vires, because the Executive Branch does not have the innate power to effectuate such changes on its own. Neither does the President have the power to bind to positive action those whom the Constitution entrusts the power to amend the charter, namely; the Congress, the delegates to a constitutional convention, and the electorate. Constitutional order cannot be sacrificed for expediency, even if in the name of peace in Mindanao. Assuming that the executive branch has in good faith become intractably convinced that it is

necessary to amend the Constitution in order to obtain lasting peace in Mindanao, the consequent step should not be to make promises it has no power alone to keep, hoping against hope that the Congress and the voters would ultimately redeem the promises. Since constitutional amendments are involved, the ability of the executive branch to undertake any legally binding commitment to amend the Constitution can only be recognized, if at all, with the prior appropriate authorization of Congress, acting with the specified majorities provided in Section 1(1), Article XVII of the Constitution.[40] Under such a mechanism, any constitutionallyoriented concessions offered by the Philippine government would contemporaneously bear the preliminary seal of approval by the people or institutions authorized to propose amendments to the Constitution, subject to final ratification by the people through a plebiscite. The Government would have been spared of the embarrassment and outcry had it acted with more prudence by first securing the necessary political mandate to undertake charter change for the benefit of Mindanao, instead of acting brashly and rashly by acceding at the outset to the undertaking without consulting the Congress or the people. In the end, the issuance of the TRO by this Court proved highly providential, as even the Government wound up seeing the proverbial light before it was too late. With the foregoing qualifications, I vote to dismiss the petitions and register my dissent from the result reached by the majority. SEPARATE OPINION CHICO-NAZARIO, J.: The piece of writing being assailed in these consolidated Petitions is a peace negotiation document, namely the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA). The Solicitor General explained that this document, prepared by the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF) Peace Panel, was merely a codification of consensus points reached between both parties and the aspirations of the MILF to have a Bangsamoro homeland.[1] Subsequently, the Solicitor General moved for the dismissal of the consolidated cases at bar based on changed circumstances as well as developments which have rendered them moot, particularly the Executive Department's statement that it

would no longer sign the questioned peace negotiation document. [2] Nonetheless, several parties to the case, as well as other sectors, continue to push for what they call a "complete determination" of the constitutional issues raised in the present Petitions. I believe that in light of the pronouncement of the Executive Department to already abandon the MOA, the issue of its constitutionality has obviously become moot. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself. But the most important are the first two requisites.[3] For a court to exercise its power of adjudication, there must be an actual case or controversy -- one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. A case becomes moot and academic when its purpose has become stale.[4] An action is considered "moot" when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. Simply stated, there is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events.[5] Such is the case here. The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a justiciable controversy for resolution by this Court. An actual case or controversy exists when there is a conflict of legal

rights or an assertion of opposite legal claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy is distinguished from a hypothetical or abstract difference or dispute, in that the former involves a definite and concrete dispute touching on the legal relations of parties having adverse legal interests. A justiciable controversy admits of specific relief through a decree that is conclusive in character, whereas an opinion only advises what the law would be upon a hypothetical state of facts.[6] For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic exercise. It would, in effect, only be delivering an opinion or advice on what are now hypothetical or abstract violations of constitutional rights. In Abbas v. Commission on Elections,[7] the 1976 Tripoli Agreement and Republic Act No. 6734 (the Organic Act for the Autonomous Region in Muslim Mindanao) were challenged for purported violations of the provisions of the Constitution on freedom of religion. The Court held therein that it should not inquire into the constitutionality of a peace agreement which was already consummated (the 1976 Tripoli Agreement) and an Organic Act which was already passed into law (R.A. No. 6734) just because of potential conflicts with the Constitution. Then, with more reason should this Court desist from ruling on the constitutionality of the MOA which is unsigned, and now entirely abandoned, and as such, cannot even have any potential conflict with the Constitution. The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these cases have generated. We are, after all, a court of law, and not of public opinion. The power of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or addressing public clamor. In acting on supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law. The Executive Department has already manifested to this Court, through the Solicitor General, that it will not sign the MOA in its present form or in any other form. It has declared the same intent to the public. For this Court to insist that the issues raised in the instant Petitions cannot be moot for they are still capable of repetition is to totally ignore the assurance given by the Executive Department that it will not enter into any other form of the MOA in the future. The Court cannot doubt the sincerity of the Executive

Department on this matter. The Court must accord a co-equal branch of the government nothing less than trust and the presumption of good faith. Moreover, I deem it beyond the power of this Court to enjoin the Executive Department from entering into agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA pray for. Such prayer once again requires this Court to make a definitive ruling on what are mere hypothetical facts. A decree granting the same, without the Court having seen or considered the actual agreement and its terms, would not only be premature, but also too general to make at this point. It will perilously tie the hands of the Executive Department and limit its options in negotiating peace for Mindanao. Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means. Peace negotiations are never simple. If neither party in such negotiations thinks outside the box, all they would arrive at is a constant impasse. Thus, a counsel for one of the intervenors who assert the unconstitutionality of the MOA[8] had no choice but to agree as follows: ASSOCIATE JUSTICE QUISUMBING: Well, we realize the constitutional constraints of sovereignty, integrity and the like, but isn't there a time that surely will come and the life of our people when they have to transcend even these limitations? DEAN AGABIN: Yes, we have seen it happen in several instances, Your Honor. xxx ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose, the Supreme Court cannot look beyond the horizon and look for more satisfying result?

DEAN AGABIN: Well, if you mean by looking beyond the horizon, it would mean a violation of the provisions of the Constitution, then it should not be, Your Honor. ASSOCIATE JUSTICE QUISUMBING: In some part, we have gone to Malaysia. We have gone to the OIC, and we have even gone to Libya. DEAN AGABIN: Yes, Your Honor. But in all these, we have always insisted on preserving the territorial integrity of the country. ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. There cannot be an exception. DEAN AGABIN: It is unassailable under the present Constitution, Your Honor. ASSOCIATE JUSTICE QUISUMBING: But, at least, you can also agree that the Constitution ought to be changed in order for a country to fulfill its internal obligation as a matter of necessity. DEAN AGABIN: Yes, if the people so will it, your Honor. ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity? They just changed their Constitution, isn't it? DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur, and they have no choice. ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good example of thinking outside the box? That one day even those who are underground may have to think. But frankly now Dean, before I end, may I ask, is it possible to meld or modify our Constitutional Order in order to have some room for the newly developing international notions on Associative Governance Regulation Movement and Human Rights? DEAN AGABIN: Yes. It is possible, Your Honor, with the consent of the people. ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it to a referendum or any consultation beforehand? DEAN AGABIN: If there is such a proposal for or amendment or

revision of the Constitution, yes, Your Honor. ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA-CHA or CON-AS? DEAN AGABIN: Yes, Your Honor.[9] It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao still remained to be elusive under its present terms. There is the possibility that the solution to the peace problem in the Southern Philippines lies beyond the present Constitution. Exploring this possibility and considering the necessary amendment of the Constitution are not per se unconstitutional. The Constitution itself implicitly allows for its own amendment by describing, under Article XVII, the means and requirements therefor. In Tan v. Macapagal,[10] where petitioners claim that the Constitutional Convention was without power to consider, discuss, or adopt proposals which seek to revise the Constitution through the adoption of a form of government other than the form outlined in the then governing Constitution, the Court ruled that: [A]s long as any proposed amendment is still unacted on by [the Convention], there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the Courts are devoid of jurisdiction. x x x. At this point, there is far from a concrete proposed amendment to the Constitution which the Court can take cognizance of, much less render a pronouncement upon. At most, the Court can only exhort the Executive Department to keep in mind that it must negotiate and secure peace in Mindanao under terms which are most beneficial for the country as a whole, and not just one group of Muslim insurgents. Transparency and consultation with all major players, which necessarily include affected local government units and their constituents, are essential to arrive at a more viable and acceptable peace plan. The nature and extent of any future written agreements should be clearly established from the very beginning, and the terms thereof carefully drafted and clearly worded, to avoid misunderstandings or misconstructions by the parties and the public. If a document is meant to be a list of consensus points still subject to further negotiations, then it should just simply state so.

As a final note, I find it necessary to stress that the Court must not allow itself to be mired in controversies affecting each step of the peace process in Mindanao. It is not within the province or even the competence of the Judiciary to tell the Executive Department exactly what and what not, how and how not, to negotiate for peace with insurgents. Given this kind of situation where war and peace hang in the balance, where people's lives are at stake, and the Executive Department, under its residual powers, is tasked to make political decisions in order to find solutions to the insurgency problem, the Court should respect the political nature of the issues at bar and exercise judicial restraint until an actual controversy is brought before it. In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and, accordingly, for the DISMISSAL of the Petitions at bar for beingMOOT and ACADEMIC. SEPARATE OPINION REYES, R.T., J.: Nemo dat quod non habet. You cannot give what you do not have. Hindi mo maibibigay ang hindi sa iyo. This maxim forcefully applies in these consolidated petitions and petitions-in-intervention for mandamus and prohibition which in the main seek the nullification of the Memorandum of Agreement on Ancestral Domain (MOA-AD) entered into between the Government of the Republic of the Philippines (GRP Panel) and the Moro Islamic Liberation Front (MILF). The issues may be compressed as follows: (1) whether the petitions and petitions-in-intervention have become moot due to supervening events; and (2) whether the MOA-AD is constitutional. I. The petitions and petitions-in-intervention have become moot due to supervening events. However, they should be decided given the exceptional circumstances, following well known precedents. During the August 29, 2008 oral arguments before the Court, the Solicitor General manifested that the MOA-AD will not be signed "in its present form or in any other form."[1] The August 28, 2008 memorandum of the Executive Secretary also says that "the government will not sign" the MOA-AD.[2] Due to these statements,

the petitions and petitions-in-intervention have clearly become moot. Be that as it may, the Court is not precluded from passing judgment on them. It is hornbook doctrine that courts will decide cases, otherwise moot, when (1) there is a grave violation of the Constitution; (2) the exceptional character of the situation and the paramount public interest involved demand; (3) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet evading review.[3] Let me cite a few examples. In Javier v. Commission on Elections,[4] petitioner Evelio B. Javier was assassinated on February 11, 1986 before his petition to the Court could be decided. In his petition, Javier argued that the proclamation of his rival, Arturo F. Pacificador, was void because it was made only by a division and not by the Commission on Elections en banc as required by the 1973 Constitution. The new Solicitor General moved for the dismissal of the petition on the ground of mootness in view of supervening events. The Court refused, saying: The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent - both of whom have gone their separate ways - could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in the quest of law but we must also give him justice. The two are not always the same. There are times we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged

right, though gone, but also for the guidance of and as a restraint on the future.[5] (Emphasis supplied) In Salonga v. Cruz-Pao,[6] the Court had already deliberated on the case, a consensus on the judgment of the Court had been reached, and a draft ponencia was circulating for concurrences and separate opinions, if any. However, on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against petitioner. In accordance with the instructions of the Minister of Justice, the prosecution reevaluated its evidence and decided the exclusion of petitioner as one of the accused in the information filed under the questioned resolution. However, this did not prevent the Court from deciding the merits of the petition. In doing so, the Court reasoned that "[t]he setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's function." It "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."[7] Similarly, Dela Camara v. Enage,[8] Gonzales v. Marcos,[9] andAquino , Jr., v. Enrile[10] were decided under the same aegis. In David v. Macapagal-Arroyo,[11] the Solicitor General moved for the dismissal of the consolidated petitions on the ground of mootness. It was argued that because the President had already lifted her declaration of state of national emergency, there was no longer an actual case or controversy. The Court was not convinced, saying that "[t]he "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case."[12] It then proceeded to declare unconstitutional major parts of the declaration of state of national emergency by the President. Just recently, in Manalo v. Calderon,[13] "[n]otwithstanding the mootness of the issues on restrictive custody and monitoring of movements of petitioners," the Court opted to resolve the petition for habeas corpus, due to "(a) the paramount public interest involved, (b) their susceptibility of recurring yet evading review, and (c) the imperative need to educate the police community on the matter."

The petitions and petitions-in-intervention call for a similar or analogous treatment by the court, due to their transcendental importance and in the national interest. II. The MOA-AD is unconstitutional. The GRP Panel went beyond their marching orders from the President. The March 1, 2001 Memorandum of Instructions from the President, [14] which prescribes the guidelines for the GRP Panel in negotiating with the MILF, partly states:

1. The negotiations shall be conducted in accordance with the

Mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.

2. The negotiation process shall be pursued in line with the

national Comprehensive Peace Process, and shall seek the principled and peace resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned. 3. The objective of the GPNP is to attain a peace settlement that shall:

a. Contribute to the resolution of the root cause of the armed conflict, and to societal reform, particularly in Southern Philippines; b. Help attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful program of autonomy for Filipino Muslims, consistent with the Peace Agreement entered into by the GRP and the MNLF on 02 September 1996; and c. Contribute to reconciliation and reconstruction in Southern Philippines.

4. The general approach to the negotiations shall include the following:

on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments; and 8. Compact rights entrenchment emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a "treaty" is defined as any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement. Curiously missing in the enumeration, however, is the Constitution. The omission could only mean that the parties intended the MOA-AD not to be bound by the fundamental law. The Constitution is supposed to be the one to conform to the MOA-AD, and not the other way around.[15] There can be no doubt as to the marching orders by the President. In negotiating with the MILF, the GRP Panel should use the Constitution as the parameter. Too, the preservation of the territorial integrity of the Republic of the Philippines should be maintained at all times. The GRP Panel, however, appears to have failed to follow those instructions. The commitment of the GRP Panel to the MILF to change the Constitution to conform to the MOA-AD violates the doctrine of separation of powers. Under the present constitutional scheme, the President is a mere bystander as far as the process of constitutional amendment or revision is concerned. The President is deprived of any participation because the Constitution[16] only allows three political agents, namely: (1) the Congress, upon a vote of three-fourths of all its members; (2) a constitutional convention;[17] and (3) the people through initiative upon a petition of at least twelve (12) per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of its registered voters. Thus, since the President is bereft of any power in effecting constitutional change, the GRP Panel, who acts under the imprimatur of the President, cannot commit to the MILF that the Constitution will be amended or revised in order to suit the MOAAD. That would be a violation of the doctrine of separation of powers. Nemo potest facere per alium quod non potest facere per

a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; b. Coordinated Third Party facilitation, where needed;

c. Consultation with affected communities and sectors.

(Emphasis supplied) In an apparent compliance with the Directive of the President, the MOA-AD mentions the following documents as terms of reference, to wit: 1. The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines; 2. The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998; 3. The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001; 4. The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001; 5. The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996; 6. Republic Act No. 6734, as amended by R.A. 9054, otherwise known as "An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)"; 7. ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter, the UN Universal Declaration

directum. No one is allowed to do indirectly what he is prohibited to do directly. Sinuman ay hindi pinapayagan na gawin nang di tuwiran ang ipinagbabawal na gawin nang tuwiran. The MOA-AD contains numerous provisions that appear unconstitutional. Respondents claim that the contents of the MOA-AD are mere concession points for further negotiations. The MILF, however, publicly announced that the MOA-AD is already a "done deal" and its signing a mere formality.[18] I find both claims of respondents and the MILF difficult to swallow. Neither position is acceptable. The GRP Panel has not presented any proof to buttress its point that, indeed, the parties intended the MOA-AD to be mere concession points for further negotiations. The MILF have not also shown proof to support its claim. In this regard,the MOA-AD should be interpreted according to its face value. Having said that, let me point out the defects of the MOA-AD. First . The MOA-AD creates a new political subdivision, the socalled Bangsamoro Juridical Entity (BJE). This is not permitted by the Constitution, which limits the political subdivisions of the Republic of the Philippines into provinces, cities, municipalities, barangays and autonomous regions.[19] Worse, the BJE also trenches on the national sovereignty and territorial integrity of the Republic of the Philippines.[20] This is so because pursuant to the MOA-AD: (1) The Bangsamoro homeland and historic territory is clearly demarcated;[21] (2) The BJE is given the authority and jurisdiction over the Ancestral Domain and Ancestral lands. This includes both alienable and non-alienable lands encompassed within their homeland and ancestral territory, [22] specified "internal waters"[23] as well as "territorial waters";[24] (3) The declared ultimate objective of entrenching the Bangsamoro homeland as a territorial space is "to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people. The Parties respect the freedom of choice of the indigenous peoples;"[25] and (4) The BJE is empowered "to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions,

necessary for developing a progressive Bangsamoro society, x x x."[26] Otherwise stated, respondents agreed to create a BJE out of the national territory of the Republic, with a distinct and separate system of government from the Republic of the Philippines.[27] Notably, the United Nations Declaration on the Rights of Indigenous Peoples, while recognizing the rights of indigenous peoples to selfdetermination, does not give them the right to undermine the territorial integrity of a State.[28] Second. The creation of the BJE is prohibited even assuming that the MOA-AD only attempts to create the BJE as an autonomous region. Only Congress is empowered to create an autonomous region.[29] In fact, RA Nos. 6734[30] and 9054,[31] the laws creating and expanding the ARMM, have already been passed by Congress. As a result of these Organic Acts, the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and the City of Marawi voted to comprise the ARMM territory under the control of the Regional Government of the ARMM. In the case of the MOA-AD, no implementing law is provided to implement its terms. What it purports to do, instead, is to provide for structures of government within the MOA-AD itself. It also obligates the GRP Panel to "conduct and deliver" a plebiscite "within twelve (12) months following the signing of the MOA-AD."[32] Third. The MOA-AD creates the Bangsamoro Homeland as an ancestral domain. However, there is non-compliance with the procedure laid down under RA No. 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA). True, Article II, Section 22 of the 1987 Constitution recognizes the rights of all indigenous peoples.[33] This, however, cannot be used in the MOA-AD as a blanket authority to claim, without sufficient proof, a territory spanning an entire geographical region, the entire Mindanao-SuluPalawan geographic region.[34] Indeed, Chapter VIII of the IPRA provides for stringent requirements and strict process of delineation for recognition of ancestral domains, thus: SEC. 51. Delineation and Recognition of Ancestral Domains. Self-delineation shall be the guiding principle in the identification and delineation of ancestral domains. As such, the ICCs/IPs concerned shall have a decisive role in all the activities pertinent

thereto. The Sworn Statement of the Elders as to the scope of the territories and agreements/pacts made with neighboring ICCs/IPs, if any, will be essential to the determination of these traditional territories. The Government shall take the necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto. Measures shall be taken in appropriate cases to safeguard the right of the ICCs/IPs concerned to land which they may no longer be exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, particularly of ICCs/IPs who are still nomadic and/or shifting cultivators. SEC. 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with the following procedures: xxxx (b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or though a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs. (c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned. (d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs; 5) Survey plans and sketch maps;

6) Anthropological data; 7) Genealogical surveys; 8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. (e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein. (f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP. (g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen days (15) from date of such publication: Provided, That in areas where no such newspaper exist, broadcasting in a radio station will be a valid substitute; Provided,further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available. (h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence; Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP. Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the Section below.

The MOA-AD is problematic when read in conjunction with the IPRA because it does not present any proof or specific reference that all the territories it enumerates accurately represent the "ancestral domains" of the Bangsamoro Homeland. The MOA-AD assumes that these territories are included in the Bangsamoro Homeland as ancestral domains, without proof or identification of native title or other claim of ownership to all the affected areas. Section 3(g) of the IPRA[35] also requires that there be a "free and informed prior consent" by the indigenous peoples concerned to be exercised through consultations before any decision relating to their ancestral domain is made. This rule not only guarantees the right to information[36] of the people in these areas, but also the right of the indigenous peoples to "free and informed prior consent" as an element of due process.[37] Obviously, respondents did not conduct the required consultation before negotiating the terms of the MOA-AD. Otherwise, no petitions and petitions-in-intervention would have been filed in the first place. Fourth . Under the MOA-AD, the BJE is vested with jurisdiction, powers and authority over land use, development, utilization, disposition and exploitation of natural resources within the Bangsamoro Homeland.[38] In doing so, respondents in effect surrendered to the BJE ownership and gave it full control and supervision over the exploration, development, utilization over the natural resources which belong to the State. This is in clear contravention of the Regalian Doctrine now expressed under Article XII, Section 2 of the 1987 Constitution, thus: All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the

measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Fifth . The MOA-AD also grants to the BJE powers to enter into any economic cooperation and trade relations with foreign countries. It compels the Republic of the Philippines to ensure the BJE's participation in international meetings and events, participation in Philippine official missions and delegations engaged in the negotiation of, among others, border agreements, sharing of incomes and revenues.[39] Thus, by assenting to install an intra sovereign political subdivision independent of the single sovereign state that is the Republic of the Philippines, respondents violated not only the Constitution, Article V, Section 2 of RA No. 6734,[40] but also the unitary system of government of the Republic of the Philippines. Sixth. Article 1, Section 1 of the 1987 Constitution provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and

connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. Without the benefit of any factual determination, the MOA-AD dismembers parts of Mindanao, turning it into a geographical dalmatian. It creates a Bangsamoro Homeland with a specified land mass, maritime, terrestrial, fluvial and alluvial dominions, (with definite internal[41] and territorial[42] waters), aerial domain, atmospheric space,[43] and even distinct "territorial waters" within the RP baselines.[44] Seventh. The MOA-AD grants to the BJE plenary power to undo executive acts and delegate to the BJE the authority to revoke existing proclamations, issuances, policies, rules and guidelines, forest concessions, timber licenses, contracts or agreements in the utilization of natural resources, mining concessions, land tenure instruments.[45]This constitutes an undue delegation of executive power. The President may delegate its executive power only to local government units or an administrative body attached to the executive department.[46] The delegation of power to the BJE, on the other hand, is delegation of executive power to an entirely different juridical entity that is not under its supervision or control. That is impermissible. Eighth. The MOA-AD empowers the BJE to build, develop, and maintain its own institutions. This includes civil service, electoral, financial and banking institutions, education, legislation, legal, economic, police, internal security force, and judicial system. [47] This is anathema to several provisions of the Constitution, namely: (1) the authority of the Commission on Elections to administer all election laws in the Philippines;[48] (2) that there shall only be one police force, national in scope to be administered and controlled by the National Police Commission;[49] (3) that the defense of the Republic shall belong exclusively to the Armed Forces of the Philippines;[50] (4) that judicial power shall be vested in one Supreme Court and in such other inferior courts as may be established by law;[51] (5) that there shall only be one independent central monetary authority, the Bangko Sentral ng Pilipinas;[52]and (6) that there shall be one independent economic planning agency.
[53]

implying such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner.[54] The definition has been expanded because now, grave abuse of discretion exists when there is a contravention of the Constitution, the law and jurisprudence.[55] Negotiate within the Constitutional bounds During the American Civil War, the Union had to win the Confederates and bring them back to the fold. It was the bloodiest war the United States ever had. But what made the war most pathetic is that it was fought by countrymen, people who called themselves brothers. With the recent hostilities in the South, I hope the day will not come for a full-scale civil war in this land we all proudly call Home. It is our solemn duty to avert that war. The aborted MOA-AD is a setback to the government. But the setback is only temporary, not a permanent one. The path to peace is long. But it can be travelled. On one hand, the government should be commended in its effort to bring lasting peace to the South. On the other hand, it needs to be reminded that any negotiation it enters into, even in the name of peace, should be within the parameters of the Constitution. WHERFORE, I vote to GRANT the petitions and petitions-inintervention and to strike down the MOA-AD as UNCONSTITUTIONAL. DISSENTINGOPINION VELASCO, JR., J.: It is a well-settled canon of adjudication that an issue assailing the constitutionality of a government act should be avoided whenever possible.[1] Put a bit differently, courts will not touch the issue of constitutionality save when the decision upon the constitutional question is absolutely necessary to the final determination of the case,i.e., the constitutionality issue must be the very lis mota of the controversy.[2] It is along the line set out above that I express my dissent and vote to dismiss the consolidated petitions and petitions-in-intervention principally seeking to nullify the Memorandum of Agreement on Ancestral Domain (MOAAD) proposed to be entered into by and between the Government

All told, respondents appear to have committed grave abuse abuse of discretion in negotiating and initialing the MOA-AD. Grave abuse of discretion has been traditionally understood as

of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF).

Non-Joinder of MILF: Fatal The Rules of Court requires all actions to be brought by or against the real party interest. The requirement becomes all the more necessary with respect to indispensable parties. For: Indispensable parties are those with such interest in the controversy that a final decree would necessarily affect their rights so that courts cannot proceed without their presence. All of them must be included in a suit for an action to prosper or for a final determination to be had.[3] As it were, the MILF was not impleaded in this case except in G.R. No. 183962. But it would appear that MILF, doubtless a real party in interest in this proceedings, was not served a copy of and asked to comment on the petition in G.R. No. 183962. Significantly, when queried during the oral arguments on the non-inclusion of the MILF, the petitioners feebly explained that first, they could not implead the MILF because they did not know where it could be served with summons; and second, they feared that impleading the MILF would be futile as the group does not acknowledge the Court's jurisdiction over it. The importance of joining the MILF in this case cannot be overemphasized. While the non-joinder of an indispensable party will generally not deprive the court of jurisdiction over the subject matter, the only prejudice to the winning party being the nonbinding effect of the judgment on the unimpleaded party, the situation at bar is different. Here, the unimpleaded party is a party to the proposed MOA-AD no less and the prospective agreement sought to be annulled involves ONLY two parties--the impleaded respondent GRP and the MILF. The obvious result is that the Court would not be able to fully adjudicate and legally decide the case without the joinder of the MILF--the other indispensable party to the agreement. The reason is simple. The Court cannot nullify a prospective agreement which will affect and legally bind one party without making said decision binding on the other contracting party. Such exercise is not a valid, or at least an effective, exercise of judicial power for it will not peremptorily settle the controversy.

It will not, in the normal course of things, writefinis to a dispute. [4] Such consequent legal aberration would be the natural result of the non-joinder of MILF. A court should always refrain from rendering a decision that will bring about absurdities or will infringe Section 1, Article 8 of the Constitution which circumscribes the exercise of judicial power.

Prematurity and Mootness The MOA-AD is but a proposal on defined consensus points. The agreement has remained and will remain a mere proposal as the GRP has put off its signing permanently.[5] The parties to the MOA do not have, in short, the equivalent of, or what passes as, a perfected and enforceable contract. As things stand, the line dividing the negotiation stage and the execution stage which would have otherwise conferred the character of obligatoriness on the agreement is yet to be crossed. In a very real sense, the MOA-AD is not a document, as the term is juridically understood, but literally a piece of paper which the parties cannot look up to as an independent source of obligation, the binding prestation to do or give and the corollary right to exact compliance. Yet, the petitioners would have the Court nullify and strike down as unconstitutional what, for all intents and purposes, is a nonexistent agreement. Like a bill after it passes third reading or even awaiting the approval signature of the President, the unsigned draft MOA-AD cannot plausibly be the subject of judicial review, the exercise of which presupposes that there is before the court an actual case or, in fine, a justiciable controversy ripe for adjudication. A justiciable controversy involves a definite and concrete dispute touching on the legal relations of parties who are pitted against each other due to their demanding and conflicting legal interests.[6] And a dispute is ripe for adjudication when the act being challenged has had direct adverse effect on the person challenging it and admits of specific relief through a decree that is conclusive in character. As aptly observed in Tan v. Macapagal,[7]for a case to be considered ripe for adjudication, it is a prerequisite that something had been accomplished by either branch of government before a court may step in. In the concrete, the Court could have entered the picture if the MOA-AD were signed. For then, and only then, can we say there is a consummated executive act to speak of. As opposed to justiciable controversy, academic issues or abstract

or feigned problems only call for advices on what the law would be upon a hypothetical state of facts.[8] Were the Court to continue entertain and resolve on the merits these consolidated petitions, the most that it can legally do is to render an advisory opinion, [9] veritably binding no one,[10] but virtually breaching the rule against advisory opinion set out, if not implied in Section 1, Article VIII charging "courts of justice [the duty] to settle actual controversies involving rights which are legally demandable and enforceable." Prescinding from and anent the foregoing considerations, it can categorically be stated that what the petitions are pressing on the Court are moot and academic questions. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value.[11] In such cases, there is no actual substantial relief to which the petitioner would be entitled to and which would be negated by the dismissal of the petition.[12] To be sure, the mootness of a case would not, in all instances, prevent the Court from rendering a decision thereon.[13] So it was that in a host of cases, we proceeded to render a decision on an issue otherwise moot and academic. Dela Camara v. Enage,[14] Gonzales v. Marcos,[15] Lacson v. Perez [16] Albania v. COMELEC,[17] Acop v. Guingona II [18] and David v. Macapagal-Arroyo,[19] among other cases, come to mind. David lists the exceptions to the rule on mootness, thus: The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. A perusal of the cases cited, however, readily reveals that the subject matters thereof involved jusiticiable controversies. In Dela Camara, for example, there was the challenged order approving an application for bail bond but at an excessive amount. The case was rendered moot by the issuance of a subsequent order reducing the amount. In Gonzales, the petition questioning the validity of the creation of the CCP Complex by then President Marcos via a executive order which was viewed as a usurpation of legislative

power was mooted by the issuance of a presidential decree upon the declaration of martial law. In Lacson, assailed was the issuance of Proclamation No. 36 declaring a state rebellion; in Albania, the petition to nullify the decision of the COMELEC annulling the proclamation of petitioner as municipal mayor was rendered moot by the election and proclamation of a new set of municipal officers; in Acop, the petition to exclude two police officers from the Witness Protection Program was rendered moot by the fact that the coverage of the two officers under the program was terminated; and in David, the petition challenging the validity of Presidential Proclamation (PP) 1017 declaring a state of emergency was rendered moot by the issuance of PP 1021 declaring that the state of national emergency has ceased. The element of justiciable controversy is palpably absent in the petitions at bar. For, as earlier explained, there is really no MOA-AD to speak of since its perfection or effectivity was aborted by supervening events, to wit: the TRO the Court issued enjoining the Kuala Lumpur signing of the MOA and the subsequent change of mind of the President not to sign and pursue the covenant. To repeat, there is, from the start, or from the moment the first petition was interposed, no actual justiciable controversy to be resolved or dismissed, the MOA-AD having been unsigned. Be that as it may, there can hardly be any constitutional issue based on actual facts to be resolved with finality, let alone a grave violation of the Constitution to be addressed. Surely the Court cannot reasonably formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar based on a non-existing ancestral domain agreement or by anticipating what the executive department will likely do or agree on in the future in the peace negotiating table. Some of my esteemed colleagues in the majority have expressed deep concern with the ramifications of a signed MOA-AD. Needless to stress, their apprehension as to such ramifications is highly speculative. Thus, judicial inquiry, assuming for the nonce its propriety, has to come later, again assuming that the peace instrument is eventually executed and challenged. At its present unsigned shape, the MOA-AD can hardly be the subject of a judicial review. The allegations of unconstitutionality are, for now, purely conjectural. The MOA-AD is only a part of a lengthy peace process that would eventually have culminated in the signing of a Comprehensive Compact. Per my count, the MOA-AD makes reference to a Comprehensive Compact a total of eight times. The

last paragraph of the MOA-AD even acknowledges that, before its key provisions come into force, there would still be more consultations and deliberations needed by the parties, viz: Matters concerning the details of the agreed consensus [point] on Governance not covered under this Agreement shall be deferred to, and discussed during, the negotiations of the Comprehensive Compact. Separation of Powers to be Guarded Over and above the foregoing considerations, however, is the matter of separation of powers which would likely be disturbed should the Court meander into alien territory of the executive and dictate how the final shape of the peace agreement with the MILF should look like. The system of separation of powers contemplates the division of the functions of government into its three (3) branches: the legislative which is empowered to make laws; the executive which is required to carry out the law; and the judiciary which is charged with interpreting the law.[20] Consequent to the actual delineation of power, each branch of government is entitled to be left alone to discharge its duties as it sees fit.[21] Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil,[22] "will neither direct nor restrain executive [or legislative action]." Expressed in another perspective, the system of separated powers is designed to restrain one branch from inappropriate interference in the business,[23]or intruding upon the central prerogatives,[24] of another branch; it is a blend of courtesy and caution, "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other."[25] But this is what the petitioners basically seek: through the overruling writs of the Court, to enjoin the Philippine Peace Negotiating Panel, or its equivalent, and necessarily the President, from signing the proposed MOA-AD and from negotiating and executing in the future similar agreements. The sheer absurdity of the situation where the hands of executive officials, in their quest for a lasting and honorable peace, are sought to be tied lest they agree to something irreconcilable with the Constitution, should not be lost on the Court. Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace, insuring domestic tranquility[26] and the suppression of violence are the domain and responsibility of the executive.[27] Now then, if it be important to

restrict the great departments of government to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that one branch should be left completely independent of the others, independent not in the sense that the three shall not cooperate in the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by or subjected to the influence of either of the branches.[28] Favorably accommodating the petitioners under the premises cannot but be viewed as a indirect attempt on the part of the Court to control and dictate on the peace prerogatives of the executive branch, and in the process unduly impairing that branch in the performance of its constitutional duties. It will distort the delicate balance of governance which the separation of powers seeks to safeguard.

One Last Word

The Executive Secretary has categorically declared that the government will not sign the MOA-AD,[29] which, as couched, may indeed be constitutionally frail or legally infirm. But the more important point is that the challenged agreement is an unsigned document without effect and force whatsoever. It conveys no right to and imposes no correlative obligation on either negotiating party. As an unsigned writing, it cannot be declared unconstitutional, as some of my colleagues are wont to do. Accordingly, I vote to DENY the petitions. The factual and legal situations call for this disposition. DISSENTING OPINION NACHURA, J.: I respectfully dissent from the ponencia of Justice Carpio Morales, even as I agree with its holding that the MOA-AD is not an international agreement or unilateral declaration binding on the Philippines under international law.

Statement of the Case We are confronted with various petitions assailing the constitutionality of the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the respondent Government of the Republic of the Philippines Peace Panel (GRP),[1] and the Moro Islamic Liberation Front (MILF),[2] to wit:

Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino[11]against respondents (except Sec. Ermita), enjoining this Court to: (a) declare the MOA-AD as null and void and without operative effect, and (b) restrain respondents from executing the MOA-AD.

1. a petition for Prohibitionand Mandamus with prayer for the

issuance of a Writ of Preliminary Injunction and Temporary Restraining Order (TRO) docketed as G.R. No. 183591, filed by the province of North Cotabato[3] against respondents GRP, Gen. Hermogenes Esperon, Jr.,[4] and Secretary Eduardo Ermita,[5] enjoining this Court to: (a) compel respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from formally signing the MOA-AD, or, in the alternative, (c) declare the initialed MOA-AD as unconstitutional;

5. a petition for Prohibition filed by Ernesto Maceda, Jejomar

Binay, and Aquilino L. Pimentel III against respondents (except Gen. Esperon and Sec. Ermita) and the MILF Peace Negotiating Panel,[12] enjoining this Court to: (a) prohibit and permanently enjoin respondents from formally signing the MOA-AD or any other agreement derive therefrom or with terms similar thereto as well as from executing any of its provisions, and (b) nullify the MOA-AD for being contrary to the Constitution and the laws;

6. a petition-in-intervention for Prohibition filed by Hon. Marino

Ridao and Kisin Buxani, residents of Cotabato City, lodged with the petitions of the Province of Cotabato and the City of Zamboanga in G.R. Nos. 183591 and 183752, enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void, or, in the alternative, (c) exclude all the thirty-seven (37) barangays of Cotabato City from the coverage of the BJE territory;

2. a petition for Prohibition and Mandamus with urgent prayer

for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order docketed as G.R. No. 183752 filed by the City Government of Zamboanga, et al.,[6]against respondents (except Sec. Ermita), enjoining this Court to: (a) compel respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from signing the MOA-AD, (c) exclude the City of Zamboanga from being part of the Bangsamoro Juridical Entity (BJE), subject-matter of the MOA-AD, or, should the MOA-AD be signed, (d) declare it as null and void.

7. a petition-in-intervention for Prohibition, Mandamus and

Injunction filed by the Municipality of Linamon,[13] enjoining this Court to: (a) permanently restrain respondents from signing the MOA-AD, or (b) permanently restrain respondents from implementing the initialed MOA-AD, if and when the MILF insists on its enforcement, and (c) declare the MOA-AD as unconstitutional.

3. 3. a petition for Injunction and/or Declaratory Relief with

prayer for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order docketed as G.R. No. 183893 filed by the City of Iligan[7] against respondents, enjoining this Court to: (a) enjoin respondents from signing the MOA-AD, or, in the alternative, from implementing the same, and (b) declare the MOA-AD as unconstitutional;

8. a petition-in-intervention for Prohibition filed by the City

Government of Isabela, Basilan Province,[14] enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude all the forty-five (45) barangays of the City of Isabela from the BJE territory;

4. a petition for Certiorari, Mandamus and Prohibition with

prayer for issuance of Writ of Injunction and/or Temporary Restraining Order docketed as G.R. No. 183951 filed by provincial government of Zamboanga Del Norte,[8] Rep. Cecilia Jalosjos Carreon,[9] Rep. Cesar G. Jalosjos,[10] and Seth Frederick Jalosjos, Fernando R. Cabigon, Jr. Uldarico Mejorada II, Edionar Zamoras, Edgar J. Baguio, Cedric

9. a petition-in-intervention for Prohibition filed by the province

of Sultan Kudarat,[15] enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOAAD as null and void, and (c) exclude the two hundred

fourteen (214) barangays of Sultan Kudarat Province from the BJE territory; 10. a petition-in-intervention for Prohibition filed by members of the bar Carlos Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, and Richalez Jagmis, all from Puerto Princesa City, Palawan, enjoining this Court to: (a) prohibit respondents from implementing the MOA-AD which they had signed with the MILF Peace Negotiating Panel, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude the Province of Palawan and the Municipalities of Bataraza and Balabac from the BJE territory; 11. a petition-in-intervention for Prohibition filed by Ruy Elias Lopez as a member of the Bagobo tribe of indigenous people living in Mindanao, enjoining this Court to: (a) permanently enjoin respondents from signing the MOA-AD, and, in the alternative, (b) declare the MOA-AD as unenforceable against other indigenous peoples;

1. To prevent the signing of, and, in the alternative, implementation of the initialed, MOA-AD; 2. To be furnished copies of the MOA-AD grounded on their right to information on matters of public concern;

3. To exclude certain cities and barangays from the BJE

territory; 4. To declare the MOA-AD as unconstitutional riddled as it is with constitutional infirmities; and 5. As regards Intervenor Lopez, to declare the MOA-AD unenforceable against indigenous peoples. The Facts Before anything else, however, the difficult facts leading to this cause celebre. The advent of the 1987 Constitution captured and reflected our nation's quest for true and lasting peace in Muslim Mindanao. The new constitution included authority for the creation of an Autonomous Region of Muslim Mindanao (ARMM).[17] This trailblazing legal framework was actually catalyzed, as early as 1976, with the signing of the Tripoli Agreement in Libya between the GRP and the MNLF. On August 1, 1989, Congress passed and approved Republic Act 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." Out of the thirteen (13) provinces and nine (9) cities subjected to a plebiscite conducted on November 19. 1989, only four (4) provinces voted for their inclusion in the ARMM, namely: Provinces of Maguindanao, Lanao Del Sur, Sulu and Tawi-Tawi. Then, on September 2, 1996, the almost elusive pursuit of peace appeared to be within reach--the GRP and the MNLF entered into and signed a total and final peace agreement implementing the 1976 Tripoli Agreement entitled "The Final Agreement on the Implementation of the 1976 Tripoli Agreement between the Government of the Republic of the Philippines and the Moro National Liberation Front." Consistent thereto, on March 31, 2001, Congress amended the first Organic Act (R.A. 6734) and enacted R.A. 9054 for the expansion of the ARMM. The plebiscite for the ratification of the amended Organic Act conducted on August 14,

12. a petition-in-intervention for Mandamus and Prohibition filed

by Senator Manuel Roxas, enjoining this Court to: (a) direct respondents to publicly reveal or disclose the contents of the MOA-AD, including all documents pertinent, related, attached thereto, and order respondents to furnish petitioner-in-intervention Sen. Roxas with the draft and/or final, complete, official, and initialed copies of said MOA-AD, and (b) command respondents from acting on and signing and implementing the MOA-AD; and 13. a petition-in-intervention for Prohibition filed by former Senator Franklin Drilon and Atty. Adel Tamano, enjoining this Court to prohibit and permanently enjoin respondents from further signing, executing, and entering into the MOAAD or any other agreement with terms similar to the MOA and/or from proceeding or implementing the MOA-AD. These cases have been consolidated and jointly heard on oral argument by the Court. In all, the main petitions and the petitions-in-intervention bewail the lack of public consultation and invoke violation of the people's right to information[16] in the drafting of the MOA-AD. The numerous petitions pray for the following reliefs:

2001 resulted in the addition of Basilan Province and Marawi City to the original four (4) provinces comprising the ARMM. Peace was almost at hand, but not quite. The MILF, a break-away faction of the MNLF, wanted a separate peace. It rejected the final peace agreement between the GRP and the MNLF, and continued their armed hostilities. Once again, in the quest for lasting peace, the GRP initiated peace talks with the MILF. On July 18, 1997, the Agreement on the General Cessation of Hostilities was signed between the GRP and the MILF Peace Panels. Next, on August 27, 1998, the General Framework of Agreement of Intent was signed by both parties at the Dawah Center, Crossing Simuay, Sultan Kudarat, Maguindanao. All these agreements, notwithstanding, at the end of 1999 to 2000, the MILF fortified its stronghold in forty-six (46) camps, attacked a number of municipalities in Central Mindanao, and took control of the town hall of Kauswagan, Lanao Del Norte. Government responded by twice declaring an "all-out war" against the MILF. On April 30, 2000, the MILF unilaterally suspended the GRP-MILF Peace Talks and, likewise, declared an all-out war against the GRP and ordered an all-out offensive on Armed Forces of the Philippines (AFP) camps all over Mindanao. Various attempts at a peace settlement were unsuccessful. On February 28, 2001, President Arroyo issued Executive Order No. 3 defining the policy and administrative structure for the government's comprehensive peace effort, in relevant part: Section 3. The Three Principles of the Comprehensive Peace Process. The comprehensive peace process shall continue to be governed by the following underlying principles: a. A comprehensive peace process should be communitybased, reflecting the sentiments, values and principles important to all Filipinos. Thus, it shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community. b. A comprehensive peace process aims to forge a new social compact for a just, equitable, humane and pluralistic society. It seeks to establish a genuinely pluralistic society, where all individuals and groups are free to engage in peaceful competition for predominance of their political programs without fear, through the exercise of rights and

liberties guaranteed by the Constitution, and where they may compete for political power through an electoral system that is free, fair and honest. c. A comprehensive peace process seeks a principled and peaceful resolution to the internal armed conflicts, with neither blame nor surrender, but with dignity for all concerned. Section 4. The Six Paths to Peace. The components of the comprehensive peace process comprise the processes known as the "Paths to Peace." These components processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation, or even constitutional amendments. b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. This component includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process. c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves the conduct of face-to-face negotiations to reach peaceful settlement with the different rebel groups. It also involves the effective implementation of peace agreements. d. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND REHABILITATION. This component includes programs to address the legal status and security of former rebels, as well as community-based assistance programs to address the economic, social and psychological rehabilitation needs of former rebels, demobilized combatants and civilian victims of the internal armed conflicts. e. ADDRESSING CONCERNS ARISING FROM CONTINUING ARMED HOSTILITIES. This component involves the strict implementation of laws and policy guidelines, and the

institution of programs to ensure the protection of noncombatants and reduce the impact of the armed conflict on communities found in conflict areas. f. BUILDING AND NURTURING A CLIMATE CONDUCIVE TO PEACE. This component includes peace advocacy and peace education programs, and the implementation of various confidence-building measures.

Agreement of 2001 between the GRP and the MILF. The peace process finally culminated in the drafting of the subject MOA-AD intended to be signed in Kuala Lumpur, Malaysia on August 5, 2008. News report began to appear on the contents of the MOA-AD and its scheduled signing on August 5, 2008. Main petitioners, except petitioners in G.R. No. 183962, all scrambled to procure a copy of the draft of this MOA-AD. Inability to secure copies thereof and a categorical response from respondent GRP, prompted the filing of these petitions. On the eve of the scheduled signing, by Resolution dated August 4, 2008, we issued a Temporary Restraining Order commanding and directing respondents and their agents to cease and desist from formally signing the MOA-AD. We likewise required the Office of the Solicitor General (OSG) to submit to the Court and petitioners the official copy of the final draft of the MOA-AD. On August 8, 2008, the OSG filed its Compliance with our Resolution. Meanwhile, outbreak of violence occurred in some of the herein petitioner local government units. Oral arguments were held on August 15, 22, & 29, 2008. On August 19, 2008, the OSG filed a Manifestation and Motion to Dismiss the petitions on the ground that the Executive Department has declared it will thoroughly review MOA-AD and pursue further negotiations addressing all objections hurled against said document. The OSG's motion was greatly opposed by the petitioners. On August 28, 2008, the Executive Department pronounced that it would no longer sign the MOA-AD. On the last day of the oral arguments, Madame Solicitor General, on interpellation, declared that the Executive Department, specifically, respondent Sec. Ermita has declared that the MOA-AD "will not be signed in this form, or in any other form." Moreover, on September 3, 2008, President Arroyo dissolved the GRP Peace Panel. Finally, in compliance to the Court's directive upon termination of the oral arguments, the parties' submitted their respective Memoranda. Petitioners and petitioners-in-intervention maintain that despite the supervening events and foregoing declarations and acts of the Executive Department, there remains a justiciable controversy, a conflict of legal rights by the parties that ought to be adjudicated by this Court. They asseverate that, supervening events notwithstanding, the cases at bench have not been mooted, or, even if so, the issues they raised fall within the exceptions to the moot and academic principle. Consequently, even with the

In addition thereto, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel providing the General Guidelines on the Peace Talks with the MILF. On April 3, 2001, as a consequence of the signing of the Agreement on the General Framework for the Resumption of Peace Talks between the GRP and the MILF on March 24, 2001, in Kuala Lumpur, Malaysia, the MILF suspended all military actions in their areas of operation. Subsequently, two (2) rounds of Formal Peace Talks occurred in June 20-22, 2001 and August 5-7, 2001, respectively, with the latter resulting in the signing of the Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 and effectively placing the parties on a cease-fire status. This agreement contained three (3) strands, specifically: (1) the Security Aspect; (2) Humanitarian, Rehabilitation and Development Aspects; and (c) the Ancestral Domain Aspect. And as previously stated, R.A. 9054 amending the Organic Act was ratified with the inclusion of Basilan Province and Marawi City in the ARMM. Yet, incidences of violence and violation of the cease-fire pact by the MILF continued to occur. On July 19, 2003, the GRP and the MILF once again agreed to a cessation of hostilities and resume peace talks. In connection therewith, on September 2, 2003, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel, i.e., Revised General Guidelines on the Peace Talks with the Moro Islamic Liberation Front. Therefrom, the continuation of several rounds of previously held exploratory talks was held on June 20-21, 2005 at Kuala Lumpur, Malaysia and resulted in the forging of clear parameters and principles to be pursued on the Governance Strand (Aspect) of the Ancestral Domain. This was followed by another round of Exploratory Talks on September 15-16, 2005 also in Kuala Lumpur, Malaysia, where both panels adopted the points on the same strand/aspect of Ancestral Domain provided in the Peace

dissolution of the GRP Peace Panel and the positive and unequivocal declaration by the Executive Department that the MOA-AD will not be signed in this form or in any other form, the constitutionality of the MOA-AD may still be ruled upon. At the other end of the spectrum, however, the OSG is adamant that this contentious MOA-AD is, in fact, only a codification of "consensus points" and does not, in any way, create rights and obligations that must be declared infirm, and thus, is not ripe for adjudication by this Court. Furthermore, the OSG insists that the petitions and petitions-in-intervention must be dismissed on the ground of mootness, supervening events having rendered the assailed MOA-AD inexistent and all the reliefs prayed for satisfied and fulfilled. In addition, the OSG argues that a ruling by this Court on the constitutionality of the MOA-AD violates the doctrine of separation of powers as the negotiation of the MOA-AD is embraced in the President's powers and in the nature of a political question, outside the pale of judicial review.

grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initialed the MOA-AD. I submit that because of supervening events, the petitions and petitions-in-intervention are no longer ripe for adjudication and that these cases have been rendered moot and academic. Accordingly, the petitions should be dismissed. I. PROCEDURAL

i. Locus Standi Our pronouncements in David v. Macapagal-Arroyo[18] are instructive: The difficulty of determining locus standi arises in public suits.Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. xxxx However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt, later reaffirmed inTileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity

The Issues From the pleadings and as delineated on oral arguments, the issues raised are both procedural and substantive, namely

1. Procedural
(i) Whether petitioners and petitioners-in-intervention have locus standi; (ii) Whether the petitions and petitions-in-intervention continue to present a justiciable controversy still ripe for adjudication; and (iii) Whether the petitions and petitions-in-intervention have become moot and academic. 2. Substantive (i) Whether the MOA-AD is unconstitutional; (ii) Whether the GRP Peace Panel (respondents) committed

of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the farreaching implications of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. xxxx By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. The test we have laid down is whether the party has alleged 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 questions.[19] When an individual sues as a citizen, he must allege that he has been or is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[20] When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.[21] The petitioners and petitioners-in-intervention claim locus standi with their invocation of the transcendental importance of the issues involved and their assertion of public rights to information and to consultation. Considering that the Court has discretion to relax this procedural technicality, and given the liberal attitude it has adopted in a number of earlier case, we acknowledge the legal standing of the petitioners herein. ii. Ripeness for Adjudication A mandatory requirement for the Court's exercise of the power of judicial review is the existence of an actual case or controversy. An actual case or controversy is a conflict of legal rights, an assertion of opposite legal claims which can be resolved on the basis of existing law and jurisprudence.[22] The controversy must be definite and concrete, bearing upon the legal relations of parties who are pitted against each other due to their adverse legal interests.[23] But it is not enough that the controversy exists at the outset. To qualify for adjudication, it is necessary that the actual controversy be extant at all stages of review, not merely at the time the complaint is filed.[24] This is to say that the case is ripe for judicial determination. In Guingona v. Court of Appeals,[25] we had occasion to declare: Closely related to the requirement of "actual case," Bernas continues, is the second requirement that the question is "ripe" for adjudication. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. Thus, in PACU v. Secretary of Education, the Court declined to pass judgment on the question of the validity of Section 3 of Act No. 2706, which provided that a private school may be opened to the public, it must first obtain a permit from the

secretary of education, because all the petitioning schools had permits to operate and were actually operating, and none of them claimed that the secretary had threatened to revoke their permit. In Tan v. Macapagal, the Court said that Petitioner Gonzales "had the good sense to wait" until after the enactment of the statute [Rep. Act No. 4913(1967)] requiring the submission to the electorate of certain proposed amendments to the Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)] before he could file his suit. It was only when this condition was met that the matter became ripe for adjudication; prior to that stage, the judiciary had to keep its hands off. The doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit. Being one such branch, the judiciary, Justice Laurel asserted, "will neither direct nor restrain executive [or legislative action] x x x." The legislative and the executive branches are not allowed to seek advice on what to do or not to do; thus, judicial inquiry has to be postponed in the meantime. Before a court may enter the picture, a prerequisite is that something has been accomplished or performed by either branch. Thenmay it pass on the validity of what has been done but, then again, only "when x x x properly challenged in an appropriate legal proceeding." In the case at bench, there is no gainsaying that at the time of the filing of the initial petitions up to the issuance by this Court of the Temporary Restraining Order, there was an actual extant controversy. The signing of the MOA-AD in Malaysia had been scheduled; several foreign dignitaries were invited to grace the ceremony. The timeliness of the exercise of power by the Court may have prevented a possible constitutional transgression. It was so timely an exercise of judicial review over an actual controversy by the Court such that it may have provided the impetus sufficient for the Executive Department to "review" its own acts, and to decided, subsequently, to abort the entire MOA-AD. However, supervening events effectively eliminated the conflict of rights and opposite legal claims. There is no longer an actual case or controversy between the parties. The GRP Peace Panel, respondents in these consolidated cases, has been disbanded by the President, along with the resounding declaration that "the MOAAD will not be signed in its present form, or in any other form." The Memorandum issued by Executive Secretary Ermita to the Solicitor General is unequivocal: "No matter what the Supreme Court ultimately decides, the government will not sign the MOA."

The subsequent events were sufficient to alter the course of these judicial proceedings. The President's decision not to sign the MOAAD may even be interpreted as a rectification of flawed peace negotiations by the panel. But to this Court, it is clearly a supervening event that affects the ripeness of the case for adjudication. With an abandoned and unsigned MOA-AD and a dissolved peace Panel, any purported controversy has virtually disappeared. Judicial review cannot be exercised where the incipient actual controversy does not remain extant until the termination of the case; this Court cannot provide reliefs for controversies that are no longer there. After the mandamus aspect of the initial petitions had been satisfied, what remains are basically the petitions for certiorari and prohibition.[26] The reliefs prayed for include the declaration of nullity of the MOA-AD and the prohibition on the members of the Peace Panel from signing the MOA-AD. These reliefs are unavailing, because the peace Panel has been dissolved and, by the nature of things, rendered permanently unable to sign any agreement. On the other hand, the MOA-AD sought to be nullified does not confer any rights nor imposes any duties. It is, as of today, non-existent. In Montesclaros v. COMELEC,[27] we held that a proposed bill is not subject to judicial review, because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill having no legal effect violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress. This ruling finds a parallel in a proposed agreement to be entered into by the Executive Department which has been aborted, unsigned, and "will not be signed in its present form or in any other form."

iii. Mootness A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. Generally, courts decline jurisdiction over such case, or dismiss it on ground of

mootness.[28] Thus, in Gonzales v. Narvasa,[29] where the constitutionality of the creation of the Preparatory Commission on Constitutional Reform (PCCR) was questioned, the Court dismissed the petition because by then, the PCCR had ceased to exist, having finished its work and having submitted its recommendations to then President Estrada. InAbbas v. COMELEC,[30] we refused to rule on a perceived potential conflict between provisions of the Muslim Code and those of the national law. However, it is axiomatic that courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; or fourth, when the case is capable of repetition yet evasive of review.[31] As to the first exception, there is no violation of the Constitution that will justify judicial review despite mootness, because the MOAAD has not been signed - and will not be signed. The eminent Justice Antonio T. Carpio, in his separate opinion, even as he expressed fears of numerous "drastic changes" in the Constitution, acknowledges that these will take place only IF the MOA-AD will be signed. The scholarly ponencia concludes with the finding that the MOA-AD is unconstitutional, obviously referring to its provisions. So does the separate opinion of Justice Ruben T. Reyes. But, to repeat, the MOA-AD is, as of today, non-existent. Thus, as it is, these dreaded constitutional infractions are, at best, anticipatory, hypothetical or conjectural. Neither will the second exception apply. The issue of paramount public interest will arise only IF the MOA-AD is signed. With the Peace Panel dissolved, and with the unequivocal pronouncement of the President that the MOA-AD will not be signed, there is no occasion to speak of the exceptional or extraordinary character of the controversy as would render the case ripe for resolution and susceptible of judicial determination. Given the events that led to the issuance by the Court of a TRO in order to stop the signing of the MOA-AD in Malaysia on August 5, 2008, it would appear that there is a need for the Court to formulate controlling principles, precepts and rules to guide the bench, the bar and the public - particularly a peace negotiating panel - in future peace talks. However, a scrutiny of the factual

antecedents of this case reveals that no such imperative exists. It is well to note that Executive Order No. 3, which created the GRP Peace Panel, explicitly identifies the Constitution as the basic legal framework for the peace negotiations. It states that the GRP Peace Panel was created with the primary objective to attain "a just, comprehensive and enduring peace under a rule of law and in accordance with constitutional processes,"[32] with "a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation."[33] The same Executive Order provides sufficient standards to guide the GRP Peace Panel in the performance of its avowed work. Then, there is the March 1, 2001 Memorandum of Instructions from the President, followed by the Memorandum of Instructions dated September 8, 2003. Common to the instructions is the provision that the negotiation shall be conducted "in accordance with the mandate of the Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the Republic of the Philippines." These are adequate guidelines for the GRP Peace panel; it would be superfluous for the Court to issue guidelines which, presumably, will be similar to the ones already in existence, aside from possibly trenching on the constitutional principle of separation of powers. If the respondents-members of the GRP Peace Panel, in the conduct of the negotiation, breached these standards or failed to heed the instructions, it was not for lack of guidelines. In any event, the GRP Peace Panel is now disbanded, and the MOA-AD unsigned and "not to be signed." There is no necessity for this Court to issue its own guidelines as these would be, in all probability, repetitive of the executive issuances. The fourth exception, that the issue is "capable of repetition yet evasive of review," is likewise inapplicable in this case. In this connection, we recall Sanlakas v. Reyes,[34]where the Court dismissed the petitions which assailed as unconstitutional Proclamation No. 427, declaring a state of rebellion, and General Order No. 4, after the President had issued Proclamation no. 435 declaring that the state of rebellion had ceased to exist. Apart from the brilliant ponencia of Justice Dante O. Tinga, particularly illuminating is the separate opinion of Chief Justice Artemio V. Panganiban when he wrote:

While the Petitions herein have previously embodied a live case or controversy, they now have been rendered extinct by the lifting of the questioned issuances. Thus, nothing is gained by breathing life into a dead issue. Moreover, without a justiciable controversy, the Petitions have become pleas for declaratory relief, over which the Supreme Court has nooriginal jurisdiction. Be it remembered that they were filed directly with this Court and thus invoked its original jurisdiction. On the theory that the "state of rebellion" issue is "capable of repetition yet evading review," I respectfully submit that the question may indeed still be resolved even after the lifting of the Proclamation and Order,provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance. In the present case, petitioners have not shown that they have been or continue to be directly and pecuniarily prejudiced or damaged by the Proclamation and Order. Neither have they shown that this Court has original jurisdiction over petitions for declaratory relief. I would venture to say that, perhaps, if this controversy had emanated from anappealed judgment from a lower tribunal, then this Court may still pass upon the issue on the theory that it is "capable of repetition yet evading review," and the case would not be an original action for declaratory relief. In short, the theory of "capable of repetition yet evading review" may be invoked only when this Court has jurisdiction over the subject matter. It cannot be used in the present controversy for declaratory relief, over which the Court has nooriginal jurisdiction. Given the similar factual milieu in the case at bench, I submit that judicial review of the instant controversy cannot be justified on the principle that the issue is "capable of repetition yet evasive of review." II. SUBSTANTIVE I respectfully submit that the Court should view this case from the perspective of executive power, and how it was actually exercised in the formulation of the GRP Peace Panel until the challenged MOA-AD was crafted in its present abandoned form. The President is the Chief Executive of the Republic and the

Commander-in-Chief of the armed forces of the Philippines. Section 1, Article VII of the Philippine Constitution provides: "The executive power shall be vested in the President of the Philippines." Additionally, Section 18, Article VII, states: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege pf the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. In Sanlakas v. Reyes,[35] we held that the above provision grants the President, as Commander-in-Chief, a sequence of graduated powers, to wit: (1) the calling out power, (2) the power to suspend the privilege of the writ of habeas corpus, and (3) the power to declare martial law. Thus: In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, "[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that `whenever it becomes necessary,' the President may call the armed forces `to prevent or suppress lawless violence, invasion or rebellion.'" Implicit in these is the President's power to maintain peace and order. In fact, in the seminal case of Marcos v. Manglapus,[36] we ruled:

[T]his case calls for the exercise of the President's powers as protector of the peace. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ ofhabeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. Undoubtedly, then, the President has power to negotiate peace with the MILF, and to determine in what form and manner the peace process should be conducted. In the exercise of this power, the President issued Executive Order No. 3, where she mapped out the principles to be followed in the comprehensive peace process: (a) community-based and defined by all Filipinos as one community, (b) a new social compact establishing a genuinely pluralistic society, and (c) a principled and peaceful resolution to the internal armed conflicts.[37] In Section 4 thereof, the president identified the 6 paths to peace, with processes being interrelated and not mutually exclusive, and must be pursued simultaneously in a coordinated and integrated fashion: (a) pursuit of social, economic and political reforms, (b) consensusbuilding and empowerment for peace, (c) peaceful, negotiated settlement with the different rebel groups, (d) programs for the reconciliation, reintegration into mainstream society and rehabilitation, (e) addressing concerns arising from continuing armed hostilities, and (f) building and nurturing a climate conducive to peace. Executive Order No. 3, together with the Memorandum of Instructions of March 1, 2001 and the Memorandum of Instructions of September 8, 2003, constitutes the mandate of the GRP Peace panel. It was within the parameters of this mandate that the GRP Peace panel was to negotiate with the MILF and arrive at a

Comprehensive Peace Agreement. It was pursuant to these strictures that the MOA-AD was crafted, initialed and scheduled for signing. Even as the petitioners and petitioners-in-intervention roundly condemn the MOA-AD, as currently worded, to have violated constitutional and statutory principles - and assail the GRP Peace Panel for having acted with grave abuse of discretion because of its failure to abide by its mandate - it is noteworthy they do not raise any question about the validity of Executive Order No. 3 and the Instructions issued by the President. Considering the events that have supervened since the filing of the initial petition and the issuance by this Court of a TRO, it is suggested that the angle of vision for the discussion of the substantive issues in this case should be from the perspective of the relief/s that this Court can grant the parties, taking into account their respective prayers. These are: 1. Mandamus. a) Three petitions and two petitions-in-intervention praying for a writ of mandamus, to compel the production of the official copy of the MOA-AD, the petitioners invoking their right to information. These petitions are now mooted, because the requested documents have already been produced. b) Two respondents-intervenors who pray that the Executive Department be directed to sign the MOA-AD and to continue with the peace negotiations. With the definite pronouncement of the President that the MOA-AD will not be signed in its present form or in any other form, this prayer cannot be granted, because the Court cannot compel a party to enter into an agreement. 2. Declaratory Relief. - One petition for declaratory relief which may not be granted because the Court has no original jurisdiction over petitions for declaratory relief.[38] 3. Certiorari and Prohibition. One petition for certiorari and twelve petitions for prohibition, including the petitions-in-intervention, seek a declaration of nullity of the MOA-AD (for being unconstitutional), a writ of certiorari against the members of the GRP Peace Panel for having acted with grave abuse of discretion, and a writ of prohibition to prevent the signing of the MOA-AD.

There's the rub. Because the MOA-AD will not be signed "in its present form, or in any other form," certiorari will not lie. The Court cannot review an inexistent agreement, an unborn contract that does not purport to create rights or impose duties that are legally demandable. Neither will the remedy of prohibition lie against a GRP Peace Panel that no longer exists. To do so would be to flog a dead horse. The ponencia would wish to get around this inescapable truth by saying: "The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion." With due respect, I beg to disagree. Grave abuse of discretion can characterize only consummated acts (or omissions), not an "almost (but not quite) consummated act." Chief Justice Panganiban, in his separate opinion in Sanlakas, writes: "The first requirement, the existence of a live case or controversy, means that the existing litigation is ripe for resolution and susceptible of judicial determination, as opposed to one that is conjectural or anticipatory, hypothetical or feigned." It is not the province of this Court to assume facts that do not exist. It is for the foregoing reasons that I respectfully register my dissent. I vote to DENYthe petitions.

CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-in-intervention. x-----------------------------x G.R. No. 177499 November 18, 2008

G.R. No. 176951

November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY

OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-in-intervention. x - - - - - - - - - - - - - - - - - - - - - - - - - - --x G.R. No. 178056 November 18, 2008

During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities. However, Congress did not act on bills converting 24 other municipalities into cities. During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the Local Government Code by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million. The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence.6 After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009. On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood Laws 10) on various dates from March to July 2007 without the President's signature.11 The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city. Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-in-intervention. DECISION CARPIO, J.: The Case These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treas2 assailing the constitutionality of the subject Cityhood Laws and enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting plebiscites pursuant to the Cityhood Laws. The Facts

same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.13 The Issues The petitions raise the following fundamental issues: 1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and 2. Whether the Cityhood Laws violate the equal protection clause. The Ruling of the Court We grant the petitions. The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional. First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later. Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the Local Government Code and not in any other law, including the Cityhood Laws. Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units. Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction. Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA 9009 remained an intent and was never written into Section 450 of the Local Government Code. Sixth, the deliberations of the 11 or 12 Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress.
th th

Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause. Preliminary Matters Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and crystallizing issues affecting city government administration and securing, through proper and legal means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared constitutional. Mayor Jerry P. Treas has legal standing because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more Internal Revenue Allotment to political units than what the law allows. Applying RA 9009 is a Prospective Application of the Law RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended Section 450 of the Local Government Code, which now provides: Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One hundred million pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. 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 nonrecurring income. (Emphasis supplied) Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20 million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not provide any exemption from the increased income requirement. Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress. Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress. During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12thCongress adjourned without the Senate approving Joint Resolution No. 29. During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No. 29 filed between November and December of 2006, through their respective sponsors in Congress, individual cityhood bills containing a common provision, as follows: Exemption from Republic Act No. 9009. - The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009. This common provision exempted each of the 16 municipalities from the income requirement ofP100 million prescribed in Section 450 of the Local Government Code, as amended by RA 9009. These cityhood bills lapsed into law on various dates from March to July 2007 after President Gloria Macapagal-Arroyo failed to sign them. Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009. RA 9009 became effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed

in December 2006 the cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke the principle of non-retroactivity of laws.17 This basic rule has no application because RA 9009, an earlier law to the Cityhood Laws, is not being applied retroactively but prospectively. Congress Must Prescribe in the Local Government Code All Criteria Section 10, Article X of the 1987 Constitution provides: No province, city, municipality, or barangay shall 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. (Emphasis supplied) The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.18The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. The criteria prescribed in the Local Government Code govern exclusively the creation of a city. No other law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, nondiscriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution. RA 9009 amended Section 450 of the Local Government Code to increase the income requirement fromP20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement. In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were

pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws. Cityhood Laws Constitution Violate Section 6, Article X of the

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.20 Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as amended by RA 9009. The 11th Congress' Intent was not Written into the Local Government Code True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the Local Government Code. Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from creating private corporations except by a general law. Section 16 of Article XII provides: The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied)

Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides: Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied) If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units. A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution. Section 450 of the Local Government Code is Clear, Plain and Unambiguous There can be no resort to extrinsic aids like deliberations of Congress if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application

Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private corporations in a general law applicable to all without discrimination.21 Congress cannot create a private corporation through a special law or charter. Deliberations of the 11th Congress on Unapproved Bills Inapplicable Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses. The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the cityhood bills in 2006 during the 13 th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides: Sec. 123. x x x All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied) Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states: Section 78. Calendar of Business. The Calendar of Business shall consist of the following: a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)

Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses. Applicability of Equal Protection Clause If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to theP100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local Government Code, could be assailed on the ground of absence of a valid classification. However, Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution. Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act No. 9009 The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009." This one sentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted. Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement. To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,23 not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled:

The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions: 1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law; 3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class.24 There is no substantial distinction between municipalities with pending cityhood bills in the 11thCongress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11thCongress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion mere pendency of a cityhood bill in the 11 th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million. The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held:

We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law. (Emphasis supplied) In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11thCongress - as against all other municipalities that want to convert into cities after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. SO ORDERED.

x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177499 December 21, 2009

G.R. No. 176951

December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178056 December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF

GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. DECISION VELASCO, JR. J.: Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent,1 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.2 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.3 Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.4 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.5 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 others 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.6 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.7 BACKGROUND The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas8 assail the constitutionality of the

sixteen (16) laws,9 each converting the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to subject laws. By Decision10 dated November 18, 2008, the Court en banc, by a 65 vote, granted the petitions and nullified the sixteen (16) cityhood laws for being violative of the Constitution, specifically its Section 10, Article X and the equal protection clause. Subsequently, respondent local government units (LGUs) moved for reconsideration, raising, as one of the issues, the validity of the factual premises not contained in the pleadings of the parties, let alone established, which became the bases of the Decision subject of reconsideration.11 By Resolution of March 31, 2009, a divided Court denied the motion for reconsideration. A second motion for reconsideration followed in which respondent LGUs prayed as follows: WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its "Resolution" dated March 31, 2009, in so far as it denies for "lack of merit" respondents "Motion for Reconsideration" dated December 9, 2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents "Motion for Reconsideration" dated December 9, 2008 to grant afore-mentioned "Motion for Reconsideration" dated December 9, 2008 and dismiss the "Petitions For Prohibition" in the instant case. Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as follows: By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009. The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention x x x filed by counsel for Ludivina T. Mas, et al. are also DENIED. No further pleadings shall be entertained. Let entry of judgment be made in due course. x x x On May 14, 2009, respondent LGUs filed a Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents

"Motion for Reconsideration of the Resolution of March 31, 2009" and "Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings Thereon." Per its Resolution of June 2, 2009, the Court declared the May 14, 2009 motion adverted to as expunged in light of the entry of judgment made on May 21, 2009. Justice Leonardo-De Castro, however, taking common cause with Justice Bersamin to grant the motion for reconsideration of the April 28, 2009 Resolution and to recall the entry of judgment, stated the observation, and with reason, that the entry was effected "before the Court could act on the aforesaid motion which was filed within the 15-day period counted from receipt of the April 28, 2009 Resolution."12 Forthwith, respondent LGUs filed a Motion for Reconsideration of the Resolution of June 2, 2009 to which some of the petitioners and petitioners-in-intervention filed their respective comments. The Court will now rule on this incident. But first, we set and underscore some basic premises: (1) The initial motion to reconsider the November 18, 2008 Decision, as Justice Leonardo-De Castro noted, indeed raised new and substantial issues, inclusive of the matter of the correctness of the factual premises upon which the said decision was predicated. The 6-6 vote on the motion for reconsideration per the Resolution of March 31, 2009, which denied the motion on the sole ground that "the basic issues have already been passed upon" reflected a divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the basic issues raised in the motion for reconsideration of the said decision; (2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009 was precipitated by the tie vote which served as basis for the issuance of said resolution. This May 14, 2009 motionwhich mainly argued that a tie vote is inadequate to declare a law unconstitutional remains unresolved; and (3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the constitutionality of a law shall be heard by the Court en banc and decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution boils down to whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to

the initial vote on the petition or also to the subsequent voting on the motion for reconsideration where the Court is called upon and actually votes on the constitutionality of a law or like issuances. Or, as applied to this case, would a minute resolution dismissing, on a tie vote, a motion for reconsideration on the sole stated ground that the "basic issues have already been passed" suffice to hurdle the voting requirement required for a declaration of the unconstitutionality of the cityhood laws in question? The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that "the basic issues had already been passed upon" betrayed an evenly divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6 vote, should be deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured. It ought to be clear that a deadlocked vote does not reflect the "majority of the Members" contemplated in Sec. 4 (2) of Art. VIII of the Constitution, which requires that: All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, x x x shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.) Webster defines "majority" as "a number greater than half of a total."13 In plain language, this means 50% plus one. In Lambino v. Commission on Elections, Justice, now Chief Justice, Puno, in a separate opinion, expressed the view that "a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value."14 As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in the determination of a case involving the constitutionality of a statute, without distinguishing whether such determination is made on the main petition or thereafter on a

motion for reconsideration. This is as it should be, for, to borrow from the late Justice Ricardo J. Francisco: "x x x [E]ven assuming x x x that the constitutional requirement on the concurrence of the majority was initially reached in the x x x ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration."15 To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56 and the complementary A.M. No. 991-09- SC, respectively, providing that: SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. A.M. No. 99-1-09-SC x x x A motion for reconsideration of a decision or resolution of the Court En Banc or of a Division may be granted upon a vote of a majority of the En Banc or of a Division, as the case may be, who actually took part in the deliberation of the motion. If the voting results in a tie, the motion for reconsideration is deemed denied. But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the aforequoted provisions ought to be applied in conjunction with the prescription of the Constitution that the cases "shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant cases and voted thereon." To repeat, the last vote on the issue of the constitutionality of the cityhood bills is that reflected in the April 28, 2009 Resolutiona 6-6 deadlock. On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate16 entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby.17 In the performance

of their duties, courts should not be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to facilitate the attainment of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order.18 Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.19 While perhaps not on all fours with the case, because it involved a purely business transaction, what the Court said in Chuidian v. Sandiganbayan20 is most apropos: To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules of procedure should be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with severity and rigidity when such application would clearly defeat the very rationale for their conception and existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive of the one-motion rule, can be so pervasive and compelling as to alter even that which this Court has already declared to be final. The peculiarities of this case impel us to do so now. The Court, by a vote of 6-4, grants the respondent LGUs motion for reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November 18, 2008 Decision unresolved, and also grants said second motion for reconsideration. This brings us to the substantive aspect of the case. The Undisputed Factual Antecedents in Brief During the 11th Congress,21 fifty-seven (57) cityhood bills were filed before the House of Representatives.22 Of the fifty-seven (57), thirty-three (33) eventually became laws. The twenty-four (24) other bills were not acted upon. Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 215723 to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million

average annual income to PhP 100 million locally generated income. In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that "[a] municipality x x x may be converted into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100 million] for the last two (2) consecutive years based on 2000 constant prices." After the effectivity of RA 9009, the Lower House of the 12th Congress adopted in July 2001 House (H.) Joint Resolution No. 2924 which, as its title indicated, sought to exempt from the income requirement prescribed in RA 9009 the 24 municipalities whose conversions into cities were not acted upon during the previous Congress. The 12th Congress ended without the Senate approving H. Joint Resolution No. 29. Then came the 13th Congress (July 2004 to June 2007), which saw the House of Representatives re-adopting H. Joint Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to the Senate for approval. The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason, he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to become cities and then forwarding them to the Senate for proper action.25 Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills. Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income requirement. As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to determine whether the voters approve of the conversion. As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for violation of the equal-protection clause.

The wholesale conversion of municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.26 Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene. Aside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and petitioners-inintervention collectively pray that an order issue enjoining the COMELEC from conducting plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from proclaiming the plebiscite results. On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On March 11, 2008, it heard the parties in oral arguments. The Issues In the main, the issues to which all others must yield pivot on whether or not the cityhood laws violate (1) Sec. 10. Art. X of the Constitution and (2) the equal protection clause. In the November 18, 2008 Decision granting the petitions, Justice Antonio T. Carpio, for the Court, resolved the twin posers in the affirmative and accordingly declared the cityhood laws unconstitutional, deviating as they do from the uniform and nondiscriminatory income criterion prescribed by the LGC of 1991. In so doing, the ponencia veritably agreed with the petitioners that the Constitution, in clear and unambiguous language, requires that all the criteria for the creation of a city shall be embodied and written in the LGC, and not in any other law. After a circumspect reflection, the Court is disposed to reconsider. Petitioners threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency, would veritably curtail and cripple Congress valid exercise of its authority to create political subdivisions. By constitutional design27 and as a matter of long-established principle, the power to create political subdivisions or LGUs is essentially legislative in character.28 But even without any constitutional grant, Congress can, by law, create, divide, merge, or

altogether abolish or alter the boundaries of a province, city, or municipality. We said as much in the fairly recent case, Sema v. CIMELEC.29 The 1987 Constitution, under its Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus: Section 10. No province, city, municipality, or barangay shall 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. (Emphasis supplied.) As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions "in accordance with the criteria established in the local government code," subject to the approval of the voters in the unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution. Petitioners posture does not persuade. The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term "barrio" in lieu of "barangay," "may be" instead of "shall," the change of the phrase "unit or units" to "political unit" and the addition of the modifier "directly" to the word "affected," the aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads: Section 3. No province, city, municipality, or barrio 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 unit or units affected. (Emphasis supplied.) It bears notice, however, that the "code" similarly referred to in the 1973 and 1987 Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can

exercise the lesser authority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable reason why the Constitution employs the clause "in accordance with the criteria established in the local government code" is to lay stress that it is Congress alone, and no other, which can impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law, specifically on the subject provision, explains: Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or change the boundaries of municipal corporations. The extent to which the executive may share in this power was obscured by Cardona v. Municipality of Binangonan.30 Pelaez v. Auditor General subsequently clarified the Cardona case when the Supreme Court said that "the authority to create municipal corporations is essentially legislative in nature."31 Pelaez, however, conceded that "the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature-involving as it does, the adoption of means and ways to carry into effect the law creating said municipalities."32 Pelaez was silent about division, merger, and dissolution of municipal corporations. But since division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it may fairly be inferred that these acts are also legislative in nature. Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of boundaries of provinces, cities, municipalities x x x subject to "criteria established in the local government code,"thereby declaring these actions properly legislative, but it also makes creation, division, merger, abolition or substantial alteration of boundaries "subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."33 x x x (Emphasis added.) It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or codification of laws, let alone the LGC of 1991.34 Be it noted that at the time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect. Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the LGC, then they would have actually referred to BP 337. Also, they would

then not have provided for the enactment by Congress of a new LGC, as they did in Art. X, Sec. 335 of the Constitution. Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. Petitioners theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood laws. As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis--vis the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly, by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform provision of the cityhood laws: Exemption from Republic Act No. 9009. The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009. In any event, petitioners constitutional objection would still be untenable even if we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in accordance with, among other

things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the conversion is invalid. We shall explain. Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the "criteria established in the Local Government Code," pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss this exemption angle.36 Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the heading "Requisites for Creation." The section sets the minimum income qualifying bar before a municipality or a cluster of barangays may be considered for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual income "of at least ten million pesos for the last three consecutive years" as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was superseded by the LGC of 1991 whose then Sec. 450 provided that "[a] municipality or cluster of barangays may be converted into a component city if it has an average annual income, x x x of at least twenty million pesos (P20,000,000.00) for at least two (2) consecutive years based on 1991 constant prices x x x." RA 9009 in turn amended said Sec. 450 by further increasing the income requirement to PhP 100 million, thus: Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: xxxx (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income. (Emphasis supplied.) The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis37 or strictly literal interpretation of a statute may render

it meaningless and lead to inconvenience, an absurd situation or injustice.38 To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself,39 resort should be to the rule that the spirit of the law controls its letter.40 It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom assume relevancy in discovering legislative intent.41 The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be deduced from Senator Pimentels sponsorship speech on S. Bill No. 2157. Of particular significance is his statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income requirement for municipalities wanting to be converted into cities, viz: Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have introduced to precisely amend the [LGC]. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the [LGC] was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion x x x. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities. It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the [LGC], is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds. Congress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor exchange between then Senate President Franklin Drilon and Senator Pimentel, the latter stopping short of saying that the income threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have pending cityhood bills, thus: THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x

THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard. We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration? SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill x x x [if] approved, retroact to the bills that are pending in the Senate for conversion from municipalities to cities. THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt? SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect. THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected. SENATOR PIMENTEL. These will not be affected, President.42 (Emphasis and underscoring supplied.) Mr.

What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative intentions: (1) the then pending cityhood bills would be outside the pale of the minimum income requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned. Given the foregoing perspective, it is not amiss to state that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress of not according retroactive effect to RA 9009. Not only do the congressional records bear the legislative intent of exempting the cityhood laws from the income

requirement of PhP 100 million. Congress has now made its intention to exempt express in the challenged cityhood laws. Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature.43 In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.44 Torres v. Limjapcould not have been more precise: The intent of a Statute is the Law. If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature x x x.45 (Emphasis supplied.) As emphasized at the outset, behind every law lies the presumption of constitutionality.46 Consequently, to him who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be declared invalid if a conflict with the Constitution is beyond reasonable doubt.47 Unfortunately for petitioners and petitioners-in-intervention, they failed to discharge their heavy burden. It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th Congress, Congress not being a continuing body. The argument is specious and glosses over the reality that the cityhood billswhich were already being deliberated upon even perhaps before the conception of RA 9009were again being considered during the 13th Congress after being tossed around in

the two previous Congresses. And specific reference to the cityhood bills was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the law.48And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress. This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds. To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that no person shall "be denied the equal protection of the laws." Petitioners challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of the Constitution. The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.49 This constitutional protection extends to all persons, natural or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are,

however, entitled to protection only insofar as their property is concerned.50 In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCPs claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such. As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality. It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify, 51 necessarily implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.52 The Court finds that all these requisites have been met by the laws challenged as arbitrary and discriminatory under the equal protection clause. As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the amendatory RA 9009, respondents LGUs had already met the income criterion exacted for cityhood under the LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by

Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the "changing of the rules in the middle of the game." Some excerpts of Senator Lims sponsorship speech: x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest twenty-four (24) in all failed to pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising the income requirement for creation of cities to a whooping P100 million x x x. Much as the proponents of the 24 cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded were swift and overwhelming that Congress just did not have the time to act on the measures. Some of these intervening events were x x x the impeachment of President Estrada x x x and the May 2001 elections. The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport changing the rules in the middle of the game. Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from them. For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the [LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution No. 1 reached the Senate x x x I immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September 6, I delivered the sponsorship x x x.

x x x By November 14, the measure had reverted to the period of individual amendments. This was when the then acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen (14) municipalities deemed to be qualified for city-status. Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately conducted the public hearing x x x. The whole process I enumerated [span] three Congresses x x x. In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The proponents are invoking the exemption on the basis of justice and fairness. Each of the 12 municipalities has all the requisites for conversion into a component city based on the old requirements set forth under Section 450 of the [LGC], prior to its amendment by RA 9009, namely: x x x53(Emphasis supplied.) In hindsight, the peculiar conditions, as depicted in Senator Lims speech, which respondent LGUs found themselves in were unsettling. They were qualified cityhood applicants before the enactment of RA 009. Because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Now, then, to impose on them the much higher income requirement after what they have gone through would appear to be indeed "unfair," to borrow from Senator Lim. Thus, the imperatives of fairness dictate that they should be given a legal remedy by which they would be allowed to prove that they have all the necessary qualifications for city status, using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. Truly, the peculiar conditions of respondent LGUs, which are actual and real, provide sufficient grounds for legislative classification.

To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.54 By the same token, they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend. That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional limitation only when the classification is without reasonable basis. The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment. While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress. Respondent municipalities and the 33 other municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec. 450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the

protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court. Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991. Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009. Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. The former have to comply with the PhP 100 million income requirement imposed by RA 9009. A final consideration. The existence of the cities consequent to the approval of the creating, but challenged, cityhood laws in the plebiscites held in the affected LGUs is now an operative fact. New cities appear to have been organized and are functioning accordingly, with new sets of officials and employees. Other resulting events need not be enumerated. The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws in question. In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and sets aside the Decision of November 18, 2008 subject of reconsideration. And by way of summing up the

main arguments in support of this disposition, the Court hereby declares the following: (1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills which became the cityhood laws in question. In other words, Congress intended the subject cityhood laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009; (2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income requirement; (3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice. (4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of the 1991 LGC. And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not overturned the presumptive constitutionality of the laws in question. WHEREFORE, respondent LGUs Motion for Reconsideration dated June 2, 2009, their "Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings," dated May 14, 2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED.

The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL. SO ORDERED.

I dissent. I. The Rules on Tie-Vote Section 7, Rule 56 of the Rules of Court expressly governs tie-votes in the en banc, thus: SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (Emphasis supplied) This provision contemplates three possible instances where the Supreme Court en banc may be equally divided in opinion or where the necessary majority1 in the votes cannot be had. First, in actions instituted originally in the Supreme Court, if there is a tie-vote, the Court en banc shall deliberate again. After such redeliberation and the Court remains equally divided, which means that no decision had been reached, the original action shall be dismissed. In such a case, the tie-vote results in the dismissal of the action without establishing any jurisprudential precedent. Significantly, a deadlock vote on an original action is not novel to the Court. In fact, the Court had experienced such a deadlock in Cruz v. Secretary of Environment and Natural Resources,2 Badoy, Jr. v. Comelec,3 Antonio, Jr. v. Comelec,4 Agudo v. 5 6 Comelec, and People v. Lopez. 1. Cruz v. Secretary of Environment and Natural Resources In Cruz v. Secretary of Environment and Natural Resources, petitioners Isagani Cruz and Cesar Europa brought a suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations. Petitioners challenged the constitutionality of the IPRA "on the ground that its provisions amount to an unlawful deprivation of the States ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine

DISSENTING OPINION CARPIO, J.: "A.M. No. 99-1-09-SC (dated 26 January 1999): In the Matter of Clarifying the Rule in Resolving Motions for Reconsideration The Court Resolved as follows: A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. IF THE VOTING RESULTS IN A TIE, THE MOTION RECONSIDERATION IS DEEMED DENIED." (Emphasis supplied) xxxx [T]he reason for the rule (of immutability of final judgments) is that if, on the application of one party, the court could change its judgment to the prejudice of the other, it could thereafter, on application of the latter, again change the judgment and continue this practice indefinitely. The equity of a particular case must yield to the overmastering need of certainty and unalterability of judicial pronouncements. - Justice Lucas P. Bersamin, Apo Fruits Corporation v. Court of Appeals, G.R. No. 164195, 4 December 2009 The ponencia states that "since the instant cases fall under Sec. 4(2), Art. VIII of the Constitution, [Sec. 7, Rule 56 and the Resolution in A.M. No. 99-1-09-SC] ought to be applied in conjunction with the prescription of the Constitution that the cases shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant cases and voted thereon." FOR

embodied in Section 2, Article XII of the Constitution." The Court, via a Per Curiam resolution, dismissed the petition because the Court was equally divided in opinion, to wit: After due deliberation on the petition, the members of the Court voted as follows: Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371. Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug. As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.7 (Emphasis supplied) On motion for reconsideration, the Court en banc, by virtue of Section 7, Rule 56, denied the petitioners motion for reconsideration since the members of the Court en banc were equally divided on such motion. In a minute Resolution promulgated on 21 September 2001, the Court stated that "the members of the Court who took part in the original deliberations on the petition find no reason to modify or in any way alter their views

on the questions raised by petitioners and reiterated in their motion for reconsideration and therefore maintain their votes as stated in the resolution of December 6, 2000." Justice Angelina Sandoval Gutierrez took no part on the ground that she did not participate in the deliberations on the petition. In short, the tie-vote on the main decision cannot invalidate the prior action of the Legislative and Executive branches in enacting RA 8371. Moreover, the tie-vote on the motion for reconsideration resulted in the denial of the motion for reconsideration. Thus, RA 8371 stands as valid. 2. Badoy, Jr. v. Comelec In Badoy, Jr. v. Comelec, petitioner Badoy, Jr. prayed that Section 12(F) of Republic Act No. 6132 or The 1971 Constitutional Convention Act be declared unconstitutional. The voting of the Supreme Court Justices standing at five (5) votes in favor of constitutionality and five (5) votes against, the constitutionality of the provision was deemed upheld in conformity with Section 10, Article VIII of the Constitution then in force. The petitions were, therefore, denied. 3. Antonio, Jr. v. Comelec In Antonio, Jr. v. Comelec, the Supreme Court Justices were evenly divided on the issue of whether the Comelec should have ordered, as it did, a recanvass and proclamation on the basis of the returns of certain precincts in Batanes. Five Justices believed that such a proclamation was a necessary precedent to a protest in the House Electoral Tribunal. Five other Justices dissented. The Court, pursuant to the Rules of Court, ordered a rehearing on the petition in G.R. No. L-31609 entitled Agudo v. Comelec. 4. Agudo v. Comelec In Agudo v. Comelec, where the Court reheard G.R. No. L-31609, "the equal division (5 to 5) in the Justices opinions had persisted, thus calling for the application of Section 11, Rule 56 of the 1964 Revised Rules of Court."8 Accordingly, the Court ordered the dismissal of the petition. 5. People v. Lopez In People v. Lopez, then Solicitor General Lorenzo M. Taada, filed in the name of the People of the Philippines, a petition for prohibition to enjoin Associate Judge Eusebio M. Lopez from

conducting further proceedings and from otherwise taking further cognizance of criminal cases for treason against Benigno S. Aquino (No. 3527) and against Antonio de las Alas, and other treason cases of similar nature. After the case was firstly heard, the Justices taking part were equally divided and no decision could be rendered; so the Court ordered a rehearing in accordance with Section 2 of Rule 56 in relation with Section 1 of Rule 58. The case was submitted again for deliberation and decision. The votes remained tied at 4-4. Thus, the petition was denied. The above-cited cases, involving actions originally commenced in the Supreme Court, clearly demonstrate that the Court has consistently applied the Rules on tie-vote. In accordance with such rules, the evenly divided Court directed the rehearing of those cases9 and when, after the rehearings, the tie-vote persisted, the Court ordered the dismissal or denial of the petitions. Second, in cases appealed to the Supreme Court, Section 7 of Rule 56 explicitly provides that if the Court en banc is still equally divided after re-deliberation, the judgment or order appealed from shall stand affirmed. A tie-vote in cases arising under the Courts appellate jurisdiction translates into a summary affirmance of the lower courts ruling.10 In short, the tie-vote in the en banc cannot amend or reverse a prior majority action of a lower court, whose decision stands affirmed. Third, on all incidental matters, which include motions for reconsideration, Section 7 of Rule 56 specifically states that if the Court en banc is evenly divided on such matters, the petition or motion shall be denied. To settle any doubt on how a tie-vote on a motion for reconsideration should be interpreted, the Court en banc issued a clarificatory Resolution on 26 January 1999 in A.M. No. 99-1-09-SC, as follows: A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. IF THE VOTING RESULTS IN A TIE, THE MOTION RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied) FOR

Court en banc results in a tie, the motion for reconsideration is deemed denied. The Courts prior majority action on the main decision stands affirmed.11 This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, "all other cases which under the Rules of Court are required to be heard en banc." In short, Section 4(2) requires a majority vote of the Court en banc not only in cases involving the constitutionality of a law, but also in all other cases that are heard by the Court en banc. The principle that a multi-member judicial body such as the Supreme Court cannot, based on a tie-vote, overrule a prior action is consistently applied in legislative bodies as well. 12 In the book The Standard Code of Parliamentary Procedure, the author Alice Sturgis writes: A tie vote on a motion means that the same number of members has voted in the affirmative as in the negative. Since a majority vote, or more than half of the legal votes case, is required to adopt a motion, an equal or tie vote means that the motion is lost because it has failed to receive a majority vote. A tie vote on a motion is not a deadlock vote that must be resolved; it is simply not a majority vote, and the motion is lost.13 (Emphasis supplied) Similarly, if the Philippine Supreme Court en banc is evenly split in its opinion on a motion for reconsideration, it is not a deadlock vote that must be resolved; it is simply not a majority vote, and the motion for reconsideration is defeated. More importantly, the tievote on a motion for reconsideration does not and cannot, in any instance and for any reason, supersede the prior majority vote on the main decision. II. The Tie-Vote on the Second Motion for Reconsideration Section 4(2), Article VIII of the 1987 Constitution provides: (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of majority of

The clear and simple language of the clarificatory en banc Resolution requires no further explanation. If the voting of the

the members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied) Under Section 4(2), Article VIII of the Constitution, the requirement of a majority vote of the Supreme Court en banc applies not only to the constitutionality of a law, but also to the constitutionality of treaties, executive agreements, ordinances, regulations, and all other cases which under the Rules of Court shall be heard by the Court en banc. To repeat, any case which is heard by the Court en banc shall be decided by a majority vote of the Court en banc. To insure equal protection of the law, all cases required to be heard by the Court en banc under Section 4(2), Article VII of the Constitution must be governed by the same rules on voting, whether on the main decision or on the motion for reconsideration. There can be no one rule for cases involving the constitutionality of a law and another rule for all other cases. The Constitution makes no such distinction in Section 4(2) of Article VIII. Undeniably, the Constitution does not require that motions for reconsideration in cases involving the constitutionality of a law shall be treated differently from motions for reconsideration in other cases heard by the Court en banc. There is no basis for such a different treatment, and such a different treatment would violate the equal protection of the law. Where the Constitution does not distinguish, this Court must not create a forced and baseless distinction. In the present cases, the voting on the main petitions was 6-5 to declare the sixteen Cityhood Laws unconstitutional. Clearly, there was compliance with Section 4(2), Article VIII of the 1987 Constitution since a majority of the members of the Court en banc, who actually took part in the deliberations, voted to declare unconstitutional the sixteen Cityhood Laws. In the first motion for reconsideration, a majority of 7-5 voted to deny the motion for reconsideration. Again, there was a clear majority that denied the first motion for reconsideration. The majority of the Court en banc struck down the sixteen Cityhood Laws twice, first, during the deliberations on the main petitions, and second, during the deliberations on the first motion for reconsideration. Thereafter, by deliberating on the second motion for reconsideration filed by respondents, the Court in effect allowed the filing of a second motion for reconsideration, which is generally prohibited under the Rules of Court. The Court en banc, voting 6-6, denied the second motion for reconsideration in the Resolution of 28 April 2009.

The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily resulted in the denial of the second motion for reconsideration. Certainly, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, and the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision. The Court en banc need not deliberate again because in case of a tie-vote on a second motion for reconsideration, which is an incidental matter, such motion is lost. The tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and the second motion for reconsideration must thus be denied. Further, the tie-vote on the second motion for reconsideration did not mean that the present cases were left undecided because there remain the Decision of 18 November 2008 and Resolution of 31 March 2009 where majority of the Court en banc concurred in decreeing the unconstitutionality of the sixteen Cityhood Laws. In short, the 18 November 2008 Decision and 31 March 2009 Resolution, which were both reached with the concurrence of a majority of the Court en banc, are not reconsidered but stand affirmed.14These prior majority actions of the Court en banc can only be overruled by a new majority vote, not a tie-vote because a tie-vote cannot overrule a prior affirmative action. Applying Section 7, Rule 56 and the clarificatory Resolution in A.M. No. 99-1-09-SC to the present cases does not in any manner contravene the mandate of Section 4(2), Article VIII of the Constitution. To repeat, the Court en banc deliberated on the petitions and, by a majority vote of 6-5, granted the petitions and declared the sixteen Cityhood Laws unconstitutional in the Decision of 18 November 2008. Again, by a clear majority vote of 7-5, the Court en banc voted to deny the first motion for reconsideration. Therefore, contrary to the ponencia, the present cases were decided with the concurrence of a majority of the Court en banc when it declared the unconstitutionality of the sixteen Cityhood Laws, pursuant to Section 4(2), Article VIII of the Constitution. A.M. No. 99-1-09-SC applies to all cases heard by the Court en banc. Whether the case involves the constitutionality of a law, ordinance or regulation, or any civil, administrative or criminal case which under the Rules of Court must be heard en banc, the case must be decided by a majority vote of the Court en banc as expressly required by Section 4(2), Article VIII of the Constitution. Any tie-vote in the motion for reconsideration results in the denial

of the motion for reconsideration pursuant to A.M. No. 99-1-09-SC, which governs all cases heard by the Court en banc. Further, to treat the second motion for reconsideration not as an incidental matter would certainly render inutile the distinction set forth in Section 7, Rule 56 among original actions commenced in this Court, appeals from the judgments of lower courts, and incidental matters, such as motions. III. Precedents Applying Section 7, Rule 56 In Santiago v. Comelec,15 involving the constitutionality of Republic Act No. 6735 (RA 6735), entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor," the Courten banc, in an 8-5 vote, held that RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." While the Court en banc did not expressly declare RA 6735 unconstitutional, the majority of the Court en banc ruled that RA 6735, the law governing the implementation of the initiative system, was insufficient to amend the Constitution. The majority of the Court en banc concluded that "the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system."16 On motion for reconsideration, the Courten banc voted 6-6-1,17 inevitably resulting in the denial of the motion for reconsideration and affirmance of the prior majority action on the main petition. In other words, the Court en bancs ruling in Santiago that RA 6735 was inadequate to amend the Constitution, obtained via an 8-5 vote, was deemed affirmed by a tievote on the motion for reconsideration. In fact, the Courts decision in Santiago spelled the sudden death of the socalled PIRMA initiative that triggered Santiago. The case of Cruz v. Secretary of Environment and Natural Resources also applies to the present cases. Petitioners in Cruz v. Secretary of Environment and Natural Resources challenged the constitutionality of certain provisions of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA). There, the Court en banc was evenly divided not only on the main petition, but also on the motion for reconsideration. In a minute Resolution promulgated on 21 September 2001, the Court

en banc, by virtue of Section 7, Rule 56, denied the petitioners motion for reconsideration since the members of the Court en banc were equally divided on such motion. As a result, the Per Curiam Resolution dismissing the petition stood affirmed and the constitutionality of RA 8371 was deemed upheld. Santiago and Cruz are squarely in point with the present cases because Santiago and Cruz, like the present cases, indisputably involve the constitutionality of a law and a tie-vote on the motion for reconsideration. Applying Section 7, Rule 56, the Court en banc, instead of prolonging their disposition, outrightly denied the motions for reconsideration in Santiago and Cruz. No rehearings and no redeliberations were set and conducted to re-examine the motions for reconsideration. This is precisely because such proceedings are absolutely without any basis. For this reason alone, the second motion for reconsideration in these cases must suffer the same fate as the motions for reconsideration in Santiago and Cruz -- it must be summarily denied pursuant to Section 7, Rule 56. Following the ponencia, the cases of Santiago and Cruz would be deemed unresolved. Worse, the resolutions in Santiago and Cruz denying reconsideration due to a tie-vote would be deemed a blatant disregard of the mandate of Section 4(2), Article VIII of the 1987 Constitution. IV. The Finality of the 18 November 2008 Decision Respondents, in filing the Motion to Amend the Resolution of April 28, 2009 By Declaring Instead that Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File, and To Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings Thereon (Motion to Amend the Resolution of April 28, 2009), mistakenly believe that "with the 6-6 vote on the second motion for reconsideration, the issue of whether the Cityhood Laws were unconstitutional remained unresolved." In the first place, the Motion to Amend the Resolution of April 28, 2009 is a prohibited pleading. A prohibited pleading is a scrap of paper, and can never be placed "on an equal, if not a higher, standing than a motion for reconsideration." There is nothing left to be resolved precisely because the tie-vote on the second motion for reconsideration simply means that there

was no majority vote to overturn the 18 November 2008 Decision, and the second motion for reconsideration is lost. The tie in the voting does not leave the case undecided. There is still the 18 November 2008 Decision and the 31 March 2009 Resolution which must stand in view of the failure of the members of the Court en banc to muster the necessary vote for their reconsideration. 18 No further proceedings, much less re-deliberations by the Court en banc, are required. Since the second motion for reconsideration was denied, pursuant to Section 7 of Rule 56, there is absolutely nothing which would preclude the 18 November 2008 Decision from becoming final after fifteen (15) days from receipt by the parties of the 28 April 2009 Resolution denying the second motion for reconsideration. The Court had explicitly directed the parties, in the 28 April 2009 Resolution, to refrain from filing further pleadings as it would no longer entertain the same. Yet, respondents opted to ignore and persistently defy such directive. Aside from filing the Motion to Amend the Resolution of April 28, 2009, respondents filed three more pleadings, namely, (1) Motion for Reconsideration of the Resolution of 2 June 2009, (2) Urgent Motion to Resolve Pending Incidents, and (3) Appeal to Honorable Chief Justice Reynato S. Puno and Associate Justice Antonio Eduardo B. Nachura to Participate in the Resolution of Respondents' Motion for Reconsideration of the Resolution of June 2, 2009. All these pleadings, which were filed in direct contravention of the Courts directive in the 28 April 2009 Resolution, are prohibited and are mere scraps of paper, unworthy of the Courts attention. Furthermore, having in fact been filed without express leave - no such leave ever having been granted by the Court, these pleadings are mere surplusage that did not need to be acted on, and did not give rise to any pending matter which would effectively forestall the finality of the 18 November 2008 Decision. Clearly, these various pleadings reflect respondents desperate attempts to further delay the execution of the final decision in these consolidated cases. As pointed out in petitioners' Comment Ad Cautelam,19 respondents, "by every possible guise and conceivable stratagem, have stubbornly and persistently sought to evade the finality of the 18 November 2008 Decision." Notably, respondents craftily phrased and titled their motions based on the Court's last denial order or resolution, and deliberately avoided reference to the previous repeated denials by the Court." The Court cannot countenance such dilatory tactics.

While it is perfectly fine for respondents to defend their cause with all the vigor and resources at their command, respondents may not be allowed to persist in presenting to the Court arguments which have already been pronounced by final judgment to be without merit and their motions for reconsideration of that judgment which have been denied.20 Litigations must end and terminate at some point. In the present cases, that point must be reckoned after the lapse of 15 days from the date of receipt by respondents' counsel of the 28 April 2009 Resolution denying the second motion for reconsideration or on 21 May 2009, as certified by the Deputy Clerk of Court and Chief of the Judicial Records Office. Whether respondents understood, or simply refuse to understand, the meaning of this statement, there is no other meaning than to consider G.R. Nos. 176951, 177499, and 178056 finally closed and terminated on 21 May 2009. Well-entrenched is the rule that a decision that has acquired finality becomes immutable and unalterable,21 no longer subject to attack and cannot be modified directly or indirectly, and the court which rendered it, including this Court, had lost jurisdiction to modify it.22 The Court laid down this rule precisely "(1) to avoid delay in the administration of justice and thus procedurally, to make orderly the discharge of judicial business, and; (2) to put an end to judicial controversies, at the risk of occasional errors, which is why courts exist."23 As Justice Bersamin stated in Apo Fruits Corporation v. Court of Appeals:24 [T]he reason for the rule is that if, on the application of one party, the court could change its judgment to the prejudice of the other, it could thereafter, on application of the latter, again change the judgment and continue this practice indefinitely. The equity of a particular case must yield to the overmastering need of certainty and unalterability of judicial pronouncements. (Emphasis supplied) Hence, when the 18 November 2008 Decision became final on 21 May 2009, this Court can no longer entertain and consider further arguments or submissions from the parties respecting the correctness of the decision, and nothing more is left to be discussed, clarified or done in these cases.25 In fact, in recognition of the finality of the 18 November 2008 Decision, the Commission on Elections issued Resolution No. 8670, while the Department of Budget and Management issued Local Budget Memorandum No. 61.

COMELECs Resolution No. 8670 ordained that the voters in the 16 respondent municipalities shall vote not as cities, but as municipalities in the 10 May 2010 elections. On the other hand, the Department of Budget and Management's Local Budget Memorandum No. 61 set forth the Fiscal Year 2009 Final Internal Revenue Allotment Allocation of all the legally existing cities and municipalities in the whole country and the reversion of the 16 "newly-created cities" to municipalities. Moreover, House Bill No. 6303, introduced by Representatives Carmen L. Cari, Eduardo R. Gullas, Rodolfo G. Plaza, Philip A. Pichay, Thelma Z. Almario, Wilfrido Mark M. Enverga, Manuel S. Agyao, Sharee Ann T. Tan, Edelmiro A. Amante, Mujiv S. Hataman, Jocelyn Sy Limkaichong, Ferdinand R. Marcos, Teodulo M. Coquilla and Yevgeny Vincente B. Emano, sought to amend Republic Act No. 9009 by inserting the following paragraph: THE INCOME REQUIREMENT PRESCRIBED HEREIN SHALL NOT APPLY TO MUNICIPALITIES WHICH WERE SOUGHT TO BE CONVERTED INTO CITIES AS EMBODIED IN BILLS FILED BEFORE JUNE 30, 2001 AND WHOSE CHARTERS HAVE ALREADY BEEN APPROVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES. House Bill No. 6303, in proposing to amend Republic Act No. 9009 by exempting the 16 respondent municipalities from the increased income requirement under the Local Government Code, is undoubtedly an admission that the 18 November 2008 Decision had become final and the Cityhood Laws are indeed unconstitutional. House Bill No. 6303 is clearly but an "attempt to possibly rectify the conceded fatal defect in the Cityhood Laws." To repeat, the Court, by a majority vote, ruled that the 16 Cityhood Laws are unconstitutional in its 18 November 2008 Decision. The Court, by another majority vote, denied the first motion for reconsideration of the 18 November 2008 Decision. Then, the Court, by a split-vote, denied the second motion for reconsideration. Contrary to respondents' perception, there is nothing left unresolved by the Court. The 18 November 2008 Decision became final on 21 May 2009. As a consequence, it has become immutable and unalterable, no longer subject to attack and cannot be modified directly or indirectly by this Court, which had lost jurisdiction to alter it. V. Final Note

Any ruling of this Court that a tie-vote on a motion for reconsideration reverses a prior majority vote on the main decision would wreak havoc on well-settled jurisprudence of this Court. Such an unprecedented ruling would resurrect contentious political issues long ago settled, such as the PIRMA initiative in Santiago and the people's initiative in Lambino. Countless other decisions of this Court would come back to haunt it, long after such decisions have become final and executory following the tie-votes on the motions for reconsideration which resulted in the denial of the motions. Such a ruling would destabilize not only this Court, but also the Executive and Legislative Branches of Government. Business transactions made pursuant to final decisions of this Court would also unravel for another round of litigation, dragging along innocent third parties who had relied on such prior final decisions of this Court. This Court cannot afford to unleash such a catastrophe on the nation. Accordingly, I vote to EXPUNGE from the records, for being prohibited pleadings, the (1) Motion to Amend the Resolution of April 28, 2009; (2) Motion for Reconsideration of the Resolution of June 2, 2009; (3) Urgent Motion to Resolve Pending Incidents; and (4) Appeal to Honorable Chief Justice Reynato S. Puno and Associate Justice Antonio Eduardo B. Nachura to Participate in the Resolution of Respondents Motion for Reconsideration of the Resolution of June 2, 2009.

COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x-----------------------x G.R. No. 177499 LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS,CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.

G.R. No. 176951

August 24, 2010

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs.

x-----------------------x G.R. No. 178056 LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. RESOLUTION CARPIO, J.: For resolution are (1) the ad cautelam motion for reconsideration and (2) motion to annul the Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines, et al. and (3) the ad cautelam motion for reconsideration filed by petitioners-inintervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City. On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and the equal protection clause. On 31 March 2009, the Supreme Court En Banc, again by a majority vote, denied the respondents first motion for reconsideration. On 28 April 2009, the Supreme Court En Banc, by a split vote, denied the respondents second motion for reconsideration. Accordingly, the 18 November 2008 Decision

became final and executory and was recorded, in due course, in the Book of Entries of Judgments on 21 May 2009. However, after the finality of the 18 November 2008 Decision and without any exceptional and compelling reason, the Court En Banc unprecedentedly reversed the 18 November 2008 Decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21 December 2009. Upon reexamination, the Court finds the motions for reconsideration meritorious and accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws unconstitutional. A. Violation of Section 10, Article X of the Constitution Section 10, Article X of the 1987 Constitution provides: No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government codeand subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied) The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.1 The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, nondiscriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution. RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws. RA 9009 is not a law different from the Local Government Code. Section 1 of RA 9009 pertinently provides: "Section 450 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows: x x x." RA 9009 amended Section 450 of the Local Government Code. RA 9009, by amending Section 450 of the Local Government Code, embodies the new and prevailing Section 450 of the Local Government Code. Considering the Legislatures primary intent to curtail "the mad rush of municipalities wanting to be converted into cities," RA 9009 increased the income requirement for the creation of cities. To repeat, RA 9009 is not a law different from the Local Government Code, as it expressly amended Section 450 of the Local Government Code. The language of RA 9009 is plain, simple, and clear. Nothing is unintelligible or ambiguous; not a single word or phrase admits of two or more meanings. RA 9009 amended Section 450 of the Local Government Code of 1991 by increasing the income requirement for the creation of cities. There are no exemptions from this income requirement. Since the law is clear, plain and unambiguous that any municipality desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law. Moreover, where the law does not make an exemption, the Court should not create one.2 B. Operative Fact Doctrine Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional. However, the minoritys novel theory, invoking the operative fact doctrine, is that the enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities with new sets of

officials and employees operate to contitutionalize the unconstitutional Cityhood Laws. This novel theory misapplies the operative fact doctrine and sets a gravely dangerous precedent. Under the minoritys novel theory, an unconstitutional law, if already implemented prior to its declaration of unconstitutionality by the Court, can no longer be revoked and its implementation must be continued despite being unconstitutional. This view will open the floodgates to the wanton enactment of unconstitutional laws and a mad rush for their immediate implementation before the Court can declare them unconstitutional. This view is an open invitation to serially violate the Constitution, and be quick about it, lest the violation be stopped by the Court. The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to the general rule that an unconstitutional law produces no effects. It can never be invoked to validate as constitutional an unconstitutional act. In Planters Products, Inc. v. Fertiphil Corporation,3 the Court stated: The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides: ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a

declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. (Emphasis supplied) The operative fact doctrine never validates or constitutionalizes an unconstitutional law. Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the unconstitutional law itself. Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain unconstitutional because they violate Section 10, Article X of the Constitution. However, the effects of the implementation of the Cityhood Laws prior to the declaration of their nullity, such as the payment of salaries and supplies by the "new cities" or their issuance of licenses or execution of contracts, may be recognized as valid and effective. This does not mean that the Cityhood Laws are valid for they remain void. Only the effects of the implementation of these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent people who may have relied on the presumed validity of the Cityhood Laws prior to the Courts declaration of their unconstitutionality. C. Equal Protection Clause As the Court held in the 18 November 2008 Decision, there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills.In short, the classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid

classification must not be limited to existing conditions only. In fact, the minority concedes that "the conditions (pendency of the cityhood bills) adverted to can no longer be repeated." Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11th Congress as against all other municipalities that want to convert into cities after the effectivity of RA 9009. In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. D. Tie-Vote on a Motion for Reconsideration Section 7, Rule 56 of the Rules of Court provides: SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (Emphasis supplied) The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads: A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied) The clear and simple language of the clarificatory en banc Resolution requires no further explanation. If the voting of the Court en banc results in a tie, the motion for reconsideration is

deemed denied. The Courts prior majority action on the main decision stands affirmed.4 This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, "all other cases which under the Rules of Court are required to be heard en banc." The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily resulted in the denial of the second motion for reconsideration. Since the Court was evenly divided, there could be no reversal of the 18 November 2008 Decision, for a tie-vote cannot result in any court order or directive.5 The judgment stands in full force.6 Undeniably, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior decision. Here, the tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and thus the second motion for reconsideration must be denied. Further, the tie-vote on the second motion for reconsideration did not mean that the present cases were left undecided because there remain the Decision of 18 November 2008 and the Resolution of 31 March 2009 where a majority of the Court en banc concurred in declaring the unconstitutionality of the sixteen Cityhood Laws. In short, the 18 November 2008 Decision and the 31 March 2009 Resolution, which were both reached with the concurrence of a majority of the Court en banc, are not reconsidered but stand affirmed.7These prior majority actions of the Court en banc can only be overruled by a new majority vote, not a tie-vote because a tie-vote cannot overrule a prior affirmative action. The denial, by a split vote, of the second motion for reconsideration inevitably rendered the 18 November 2008 Decision final. In fact, in its Resolution of 28 April 2009, denying the second motion for reconsideration, the Courten banc reiterated that no further pleadings shall be entertained and stated that entry of judgment be made in due course.1wphi1

The dissenting opinion stated that "a deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value."8 Indeed, a tie-vote is a non-majority a non-majority which cannot overrule a prior affirmative action, that is the 18 November 2008 Decision striking down the Cityhood Laws. In short, the 18 November 2008 Decision stands affirmed. And assuming a nonmajority lacks any precedential value, the 18 November 2008 Decision, which was unreversed as a result of the tie-vote on the respondents second motion for reconsideration, nevertheless remains binding on the parties.9 Conclusion Section 10, Article X of the Constitution expressly provides that "no x x x city shall be created x x x except in accordance with the criteria established in the local government code." This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution. Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not cripple Congress power to make laws. In fact, Congress is not prohibited from amending the Local Government Code itself, as what Congress did by enacting RA 9009. Indisputably, the act of amending laws comprises an integral part of the Legislatures law-making power. The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution that "[n]o x x x city x x x shall be created except in accordance with the criteria established in the local government code." In other words, Congress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution. WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009 Decision and REINSTATEthe 18 November 2008 Decision declaring UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

We NOTE petitioners motion to annul the Decision of 21 December 2009. SO ORDERED G.R. No. 176951 February 15, 2011

Misamis Oriental; Municipality of Naga, Cebu; Department of Budget and Management, Respondents. RESOLUTION BERSAMIN, J.: For consideration of this Court are the following pleadings:

and

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte; Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177499 LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178056 LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of

1. Motion for Reconsideration of the "Resolution" dated August 24, 2010 dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al.; and 2. Opposition [To the "Motion for Resolution dated August 24, 2010"]. Reconsideration of the

Meanwhile, respondents also filed on September 20, 2010 a Motion to Set "Motion for Reconsideration of the Resolution dated August 24, 2010" for Hearing. This motion was, however, already denied by the Court En Banc. A brief background These cases were initiated by the consolidated petitions for prohibition filed by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas, assailing the constitutionality of the sixteen (16) laws,1 each converting the municipality covered thereby into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to the subject laws. In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote,2 granted the petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6, Article X, and the equal protection clause. In the Resolution dated March 31, 2009, the Court En Banc, by a 75 vote,3 denied the first motion for reconsideration. On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 6-6,4 which denied the second motion for reconsideration for being a prohibited pleading. In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution in this wise

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained." Thus, a decision becomes final and executory after 15 days from receipt of the denial of the first motion for reconsideration. However, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited pleading. In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.5 Then, in another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4,6 declared the Cityhood Laws as constitutional. On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6,7 resolved the Ad Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009, both filed by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City, reinstating the November 18, 2008 Decision. Hence, the aforementioned pleadings. Considering these circumstances where the Court En Banc has twice changed its position on the constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues involved in these cases, the Motion for Reconsideration of the "Resolution" dated August 24, 2010 deserves favorable action by this Court on the basis of the following cogent points: 1. The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.

Article X, Section 10 provides 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. The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010 Resolution is that the exemption clauses in the 16 Cityhood Laws are unconstitutional because they are not written in the Local Government Code of 1991 (LGC), particularly Section 450 thereof, as amended by Republic Act (R.A.) No. 9009, which took effect on June 30, 2001, viz. Section 450. Requisites for Creation. a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for at least two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: xxxx (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income. (Emphasis supplied) Prior to the amendment, Section 450 of the LGC required only an average annual income, as certified by the Department of Finance, of at least P20,000,000.00 for the last two (2) consecutive years, based on 1991 constant prices. Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel, there were 57 bills filed for conversion of 57 municipalities into component cities. During the 11th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained as pending bills. Among these 24 were the 16 municipalities that were converted into component cities through the Cityhood Laws. The rationale for the enactment of R.A. No. 9009 can be gleaned from the sponsorship speech of Senator Pimentel on Senate Bill No. 2157, to wit Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have

introduced to precisely amend the Local Government Code. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the Local Government was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion to the same status. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities. It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds. What has been happening, Mr. President, is, the municipalities aspiring to become cities say that they qualify in terms of financial requirements by incorporating the Internal Revenue share of the taxes of the nation on to their regularly generated revenue. Under that requirement, it looks clear to me that practically all municipalities in this country would qualify to become cities. It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to amend, particularly Section 450 of Republic Act No. 7160, the requisite for the average annual income of a municipality to be converted into a city or cluster of barangays which seek to be converted into a city, raising that revenue requirement from P20 million to P100 million for the last two consecutive years based on 2000 constant prices.8 While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of conversion bills of several municipalities, including those covered by the Cityhood Laws, desiring to become component cities which qualified under the P20 million income requirement of the old Section 450 of the LGC. The interpellation of Senate President Franklin Drilon of Senator Pimentel is revealing, thus THE PRESIDENT. The Chair would like to ask for some clarificatory point. SENATOR PIMENTEL. Yes, Mr. President. THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration? SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill, on the assumption that it is approved, retroact to the bills that are pending in the Senate conversion from municipalities to cities. THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will apply to those bills which are already approved by the House under the old version of the Local Government Code and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt? SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect. THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected. SENATOR PIMENTEL. These will not be affected, Mr. President. THE PRESIDENT. Thank you Mr. Chairman.9 Clearly, based on the above exchange, Congress intended that those with pending cityhood bills during the 11th Congress would not be covered by the new and higher income requirement of P100 million imposed by R.A. No. 9009. When the LGC was amended by R.A. No. 9009, the amendment carried with it both the letter and the intent of the law, and such were incorporated in the LGC by which the compliance of the Cityhood Laws was gauged. Notwithstanding that both the 11th and 12th Congress failed to act upon the pending cityhood bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the 13th Congress, when the Cityhood Laws were enacted. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of R.A. No. 9009.

Even if we were to ignore the above quoted exchange between then Senate President Drilon and Senator Pimentel, it cannot be denied that Congress saw the wisdom of exempting respondent municipalities from complying with the higher income requirement imposed by the amendatory R.A. No. 9009. Indeed, these municipalities have proven themselves viable and capable to become component cities of their respective provinces. It is also acknowledged that they were centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots. In this regard, it is worthy to mention the distinctive traits of each respondent municipality, viz Batac, Ilocos Norte It is the biggest municipality of the 2nd District of Ilocos Norte, 2nd largest and most progressive town in the province of Ilocos Norte and the natural convergence point for the neighboring towns to transact their commercial ventures and other daily activities. A growing metropolis, Batac is equipped with amenities of modern living like banking institutions, satellite cable systems, telecommunications systems. Adequate roads, markets, hospitals, public transport systems, sports, and entertainment facilities. [Explanatory Note of House Bill No. 5941, introduced by Rep. Imee R. Marcos.] El Salvador, Misamis Oriental It is located at the center of the Cagayan-Iligan Industrial Corridor and home to a number of industrial companies and corporations. Investment and financial affluence of El Salvador is aptly credited to its industrious and preserving people. Thus, it has become the growing investment choice even besting nearby cities and municipalities. It is home to Asia Brewery as distribution port of their product in Mindanao. The Gokongwei Group of Companies is also doing business in the area. So, the conversion is primarily envisioned to spur economic and financial prosperity to this coastal place in North-Western Misamis Oriental. [Explanatory Note of House Bill No. 6003, introduced by Rep. Augusto H. Bacullo.] Cabadbaran, Agusan del Norte It is the largest of the eleven (11) municipalities in the province of Agusan del Norte. It plays strategic importance to the administrative and socio-economic life and development of Agusan del Norte. It is the foremost in terms of trade, commerce, and industry. Hence, the municipality was declared as the new seat and capital of the provincial government of Agusan del Norte pursuant to Republic Act No. 8811 enacted into law on August 16, 2000. Its conversion will certainly promote, invigorate, and reinforce the economic potential of the province in

establishing itself as an agro-industrial center in the Caraga region and accelerate the development of the area. [Explanatory Note of House Bill No. 3094, introduced by Rep. Ma. Angelica Rosedell M. Amante.] Borongan, Eastern Samar It is the capital town of Eastern Samar and the development of Eastern Samar will depend to a certain degree of its urbanization. It will serve as a catalyst for the modernization and progress of adjacent towns considering the frequent interactions between the populace. [Explanatory Note of House Bill No. 2640, introduced by Rep. Marcelino C. Libanan.] Lamitan, Basilan Before Basilan City was converted into a separate province, Lamitan was the most progressive part of the city. It has been for centuries the center of commerce and the seat of the Sultanate of the Yakan people of Basilan. The source of its income is agro-industrial and others notably copra, rubber, coffee and host of income generating ventures. As the most progressive town in Basilan, Lamitan continues to be the center of commerce catering to the municipalities of Tuburan, Tipo-Tipo and Sumisip. [Explanatory Note of House Bill No. 5786, introduced by Rep. Gerry A. Salapuddin.] Catbalogan, Samar It has always been the socio-economicpolitical capital of the Island of Samar even during the Spanish era. It is the seat of government of the two congressional districts of Samar. Ideally located at the crossroad between Northern and Eastern Samar, Catbalogan also hosts trade and commerce activates among the more prosperous cities of the Visayas like Tacloban City, Cebu City and the cities of Bicol region. The numerous banks and telecommunication facilities showcases the healthy economic environment of the municipality. The preeminent and sustainable economic situation of Catbalogan has further boosted the call of residents for a more vigorous involvement of governance of the municipal government that is inherent in a city government. [Explanatory Note of House Bill No. 2088, introduced by Rep. Catalino V. Figueroa.] Bogo, Cebu Bogo is very qualified for a city in terms of income, population and area among others. It has been elevated to the Hall of Fame being a five-time winner nationwide in the clean and green program. [Explanatory Note of House Bill No. 3042, introduced by Rep. Clavel A. Martinez.] Tandag, Surigao del Sur This over 350 year old capital town the province has long sought its conversion into a city that will pave the way not only for its own growth and advancement but also help

in the development of its neighboring municipalities and the province as a whole. Furthermore, it can enhance its role as the provinces trade, financial and government center. [Explanatory Note of House Bill No. 5940, introduced by Rep. Prospero A. Pichay, Jr.] Bayugan, Agusan del Sur It is a first class municipality and the biggest in terms of population in the entire province. It has the most progressive and thickly populated area among the 14 municipalities that comprise the province. Thus, it has become the center for trade and commerce in Agusan del Sur. It has a more developed infrastructure and facilities than other municipalities in the province. [Explanatory Note of House Bill No. 1899, introduced by Rep. Rodolfo "Ompong" G. Plaza.] Carcar, Cebu Through the years, Carcar metamorphosed from rural to urban and now boast of its manufacturing industry, agricultural farming, fishing and prawn industry and its thousands of large and small commercial establishments contributing to the bulk of economic activities in the municipality. Based on consultation with multi-sectoral groups, political and nongovernment agencies, residents and common folk in Carcar, they expressed their desire for the conversion of the municipality into a component city. [Explanatory Note of House Bill No. 3990, introduced by Rep. Eduardo R. Gullas.] Guihulngan, Negros Oriental Its population is second highest in the province, next only to the provincial capital and higher than Canlaon City and Bais City. Agriculture contributes heavily to its economy. There are very good prospects in agricultural production brought about by its favorable climate. It has also the Tanon Strait that provides a good fishing ground for its numerous fishermen. Its potential to grow commercially is certain. Its strategic location brought about by its existing linkage networks and the major transportation corridors traversing the municipality has established Guihulngan as the center of commerce and trade in this part of Negros Oriental with the first congressional district as its immediate area of influence. Moreover, it has beautiful tourist spots that are being availed of by local and foreign tourists. [Explanatory Note of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.] Tayabas, Quezon It flourished and expanded into an important politico-cultural center in [the] Tagalog region. For 131 years (1179-1910), it served as the cabecera of the province which originally carried the cabeceras own name, Tayabas. The locality is rich in culture, heritage and trade. It was at the outset one of the

more active centers of coordination and delivery of basic, regular and diverse goods and services within the first district of Quezon Province. [Explanatory Note of House Bill No. 3348, introduced by Rep. Rafael P. Nantes.] Tabuk, Kalinga It not only serves as the main hub of commerce and trade, but also the cultural center of the rich customs and traditions of the different municipalities in the province. For the past several years, the income of Tabuk has been steadily increasing, which is an indication that its economy is likewise progressively growing. [Explanatory Note of House Bill No. 3068, introduced by Rep. Laurence P. Wacnang.] Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga, Cebu shows their economic viability, thus: Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92 barangays, 23 of which are in the poblacion. The remaining 69 are rural barangays. Baybay City is classified as a first class city. It is situated on the western coast of the province of Leyte. It has a Type 4 climate, which is generally wet. Its topography is generally mountainous in the eastern portion as it slopes down west towards the shore line. Generally an agricultural city, the common means of livelihood are farming and fishing. Some are engaged in hunting and in forestall activities. The most common crops grown are rice, corn, root crops, fruits, and vegetables. Industries operating include the Specialty Products Manufacturing, Inc. and the Visayan Oil Mill. Various cottage industries can also be found in the city such as bamboo and rattan craft, ceramics, dress-making, fiber craft, food preservation, mat weaving, metal craft, fine Philippine furniture manufacturing and other related activities. Baybay has great potential as a tourist destination, especially for tennis players. It is not only rich in biodiversity and history, but it also houses the campus of the Visayas State University (formerly the Leyte State University/Visayas State College of Agriculture/Visayas Agricultural College/Baybay National Agricultural School/Baybay Agricultural High School and the Jungle Valley Park.) Likewise, it has river systems fit for river cruising, numerous caves for spelunking, forests, beaches, and marine treasures. This richness, coupled with the friendly Baybayanos, will be an element of a successful tourism program. Considering the role of tourism in development, Baybay City intends to harness its tourism potential. (<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)

Mati [Davao Oriental] is located on the eastern part of the island of Mindanao. It is one hundred sixty-five (165) kilometers away from Davao City, a one and a half-hour drive from Tagum City. Visitors can travel from Davao City through the Madaum diversion road, which is shorter than taking the Davao-Tagum highway. Travels by air and sea are possible, with the existence of an airport and seaport. Mati boasts of being the coconut capital of Mindanao if not the whole country. A large portion of its fertile land is planted to coconuts, and a significant number of its population is largely dependent on it. Other agricultural crops such as mango, banana, corn, coffee and cacao are also being cultivated, as well as the famous Menzi pomelo and Valencia oranges. Mati has a long stretch of shoreline and one can find beaches of pure, powder-like white sand. A number of resorts have been developed and are now open to serve both local and international tourists. Some of these resorts are situated along the coast of Pujada Bay and the Pacific Ocean. Along the western coast of the bay lies Mt. Hamiguitan, the home of the pygmy forest, where bonsai plants and trees grow, some of which are believed to be a hundred years old or more. On its peak is a lake, called "Tinagong Dagat," or hidden sea, so covered by dense vegetation a climber has to hike trails for hours to reach it. The mountain is also host to rare species of flora and fauna, thus becoming a wildlife sanctuary for these life forms. (<http://mati.wetpain.com/?t=anon> accessed on September 19, 2008.) Mati is abundant with nickel, chromite, and copper. Louie Rabat, Chamber President of the Davao Oriental Eastern Chamber of Commerce and Industry, emphasized the big potential of the mining industry in the province of Davao Oriental. As such, he strongly recommends Mati as the mining hub in the Region. (<http://www.pia.gov.ph/default.asp? m=12&sec=reader&rp=1&fi=p080115.htm&no.=9&date, accessed on September 19, 2008) Naga [Cebu]: Historical BackgroundIn the early times, the place now known as Naga was full of huge trees locally called as "Narra." The first settlers referred to this place as Narra, derived from the huge trees, which later simply became Naga. Considered as one of the oldest settlements in the Province of Cebu, Naga became a municipality on June 12, 1829. The municipality has gone through a series of classifications as its economic development has undergone changes and growth. The tranquil farming and fishing villages of the natives were agitated as the Spaniards came and discovered coal in the uplands. Coal was the first export of the

municipality, as the Spaniards mined and sent it to Spain. The mining industry triggered the industrial development of Naga. As the years progressed, manufacturing and other industries followed, making Naga one of the industrialized municipalities in the Province of Cebu. Class of Municipality 1st class Province Cebu Distance from Cebu City 22 kms. Number of Barangays 28 No. of Registered Voters 44,643 as of May 14, 2007 Total No. of Precincts 237 (as of May 14, 2007) Ann. Income (as of Dec. 31, 2006) Php112,219,718.35 Agricultural, Industrial, Agro-Industrial, Mining Product (<http://www.nagacebu.com/index.php? option=com.content&view=article id=53:naga-facts-andfigures&catid=51:naga-facts-and-figures&Itemid=75> visited September 19, 2008) The enactment of the Cityhood Laws is an exercise by Congress of its legislative power. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them.10 The Constitution, as the expression of the will of the people in their original, sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general, and comprehensive. The legislative body possesses plenary powers for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects, and extends to matters of general concern or common interest.11 Without doubt, the LGC is a creation of Congress through its lawmaking powers. Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws was again exercised when Congress enacted the Cityhood Laws. When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of local

government unitsincome, population, and land area. Congress deemed it fit to modify the income requirement with respect to the conversion of municipalities into component cities when it enacted R.A. No. 9009, imposing an amount of P100 million, computed only from locally-generated sources. However, Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside development and autonomy, especially accounting for these municipalities as engines for economic growth in their respective provinces. Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the LGC. 2. The Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the Constitution. Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the Cityhood Laws violate the equal protection clause enshrined in the Constitution. Further, it was also ruled that Section 6, Article X was violated because the Cityhood Laws infringed on the "just share" that petitioner and petitioners-inintervention shall receive from the national taxes (IRA) to be automatically released to them. Upon more profound reflection and deliberation, we declare that there was valid classification, and the Cityhood Laws do not violate the equal protection clause. As this Court has ruled, the equal protection clause of the 1987 Constitution permits a valid classification, provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.12

The petitioners argue that there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills, such that the mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. This contention misses the point. It should be recalled from the above quoted portions of the interpellation by Senate President Drilon of Senator Pimentel that the purpose of the enactment of R.A. No 9009 was merely to stop the "mad rush of municipalities wanting to be converted into cities" and the apprehension that before long the country will be a country of cities and without municipalities. It should be pointed out that the imposition of the P100 million average annual income requirement for the creation of component cities was arbitrarily made. To be sure, there was no evidence or empirical data, such as inflation rates, to support the choice of this amount. The imposition of a very high income requirement of P100 million, increased from P20 million, was simply to make it extremely difficult for municipalities to become component cities. And to highlight such arbitrariness and the absurdity of the situation created thereby, R.A. No. 9009 has, in effect, placed component cities at a higher standing than highly urbanized cities under Section 452 of the LGC, to wit Section 452. Highly Urbanized Cities. (a) Cities with a minimum population of two hundred thousand (200,000) inhabitants, as certified by the National Statistics Office, and with the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities. (b) Cities which do not meet above requirements shall be considered component cities of the province in which they are geographically located. (Emphasis supplied) The P100 million income requirement imposed by R.A. No. 9009, being an arbitrary amount, cannot be conclusively said to be the only amount "sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population," per Section 713 of the LGC. It was imposed merely because it is difficult to comply with. While it could be argued that P100 million, being more than P20 million, could, of course, provide the essential

government facilities, services, and special functions vis--vis the population of a municipality wanting to become a component city, it cannot be said that the minimum amount of P20 million would be insufficient. This is evident from the existing cities whose income, up to now, do not comply with the P100 million income requirement, some of which have lower than the P20 million average annual income. Consider the list14below CITY 1. Marawi City 2. Palayan City 3. Sipalay City 4. Canlaon City 5. Himamaylan City 6. Isabela City 7. Munoz City 8. Dapitan City 9. Tangub City 10. Bayawan City 11. Island Samal Garden City of AVERAGE INCOME 5,291,522.10 ANNUAL

14. Oroquieta City 15. Ligao City 16. Sorsogon City 17. Maasin City 18. Escalante City 19. Iriga City

24,279,966.51 28,326,745.86 30,403,324.59 30,572,113.65 32,113,970.00 32,757,871.44 34,254,986.47 36,327,705.86 37,327,705.86 39,454,508.28 40,314,620.00 40,943,128.73 41,870,239.21 43,827,060.00 44,352,501.00 44, 646,826.48 46,306,129.13 47,351,730.00

6,714,651.77 20. Gapan City 9,713,120.00 21. Candon City 13,552,493.79 22. Gingoog City 15,808,530.00 23. Masbate City 16,811,246.79 24. Passi City 19,693,358.61 25. Calbayog City 20,529,181.08 26. Calapan City 20,943,810.04 27. Cadiz City 22,943,810.04 28. Alaminos City 23,034,731.83 23,723,612.44 24,152,853.71 29. Bais City 30. San Carlos City 31. Silay City

12. Tanjay City 13. Tabaco City

32. Bislig City 33. Tacurong City 34. Talisay Occidental) City (Negros

47,360,716.24 49,026,281.56 52,609,790.00 53,560,580.00 54,423,408.55 54,760,290.00 56,831,797.19 61,556,700.49 64,266,350.00 64,566,079.05 66,231,717.19 66,302,114.52 70,157,331.12 70,309,233.43 72,621,955.30 74,305,000.00 74,557,298.92 75,757,298.92

50. Cauayan City 51. Santiago City 52. Roxas City 53. Dipolog City

82,949,135.46 83,816,025.89 85,397,830.00 85,503,262.85 87,413,786.64 87,964,972.97 89,054,056.12 89,960,971.33 91,425,301.39 92,647,699.13

35. Kabankalan City 36. Malaybalay City 37. La Carlota City 38. Vigan City 39. Balanga City 40. Sagay City 41. Cavite City 42. Koronadal City 43. Cotabato City 44. Toledo City 45. San Jose City 46. Danao City 47. Bago City 48. Valencia City 49. Victorias City

54. Trece Martires City 55. Talisay City (Cebu) 56. Ozamis city 57. Surigao City 58. Panabo City 59. Digos City

The undeniable fact that these cities remain viable as component cities of their respective provinces emphasizes the arbitrariness of the amount of P100 million as the new income requirement for the conversion of municipalities into component cities. This arbitrariness can also be clearly gleaned from the respective distinctive traits and level of economic development of the individual respondent municipalities as above submitted. Verily, the determination of the existence of substantial distinction with respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills during the 11th Congress. This Court sees the bigger picture. The existence of substantial distinction with respect to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), thus 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. Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the States partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th Congress and their relentless pursuit for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the 11th Congress, and such condition continues to exist. Petitioners in these cases complain about the purported reduction of their "just share" in the IRA. To be sure, petitioners are entitled to a "just share," not a specific amount. But the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased. Consider the table15 below CY 2006 IRA (Before Implementati on of Sixteen [16] Cityhood Laws) 219,338,056.00 334,371,984.00 353,150,158.00 329,491,285.00 388,840,062.00 361,019,211.00 CY 2008 IRA (Actual Release After Implementation of Sixteen [16] Cityhood Laws) 242,193,156.00

Calapan Calbayog Cauayan Gen. Santos Gingoog Himamaylan Iloilo Iriga Legaspi Ligao Oroquieta Pagadian San Carlos San Fernando Santiago Silay Surigao Tacurong

227,772,199.00 438,603,378.00 250,477,157.00 518,388,557.00 314,425,637.00 248,154,381.00 358,394,268.00 183,132,036.00 235,314,016.00 215,608,112.00 191,803,213.00 292,788,255.00 239,524,249.00 182,320,356.00 508,326,072.00 216,372,314.00 233,968,119.00 179,795,271.00

252,587,779.00 485,653,769.00 277,120,828.00 631,864,977.00 347,207,725.00 277,532,458.00 412,506,278.00 203,072,932.00 266,537,785.00 239,696,441.00 211,449,720.00 327,401,672.00 260,515,711.00 204,140,940.00 563,679,572.00 241,363,845.00 260,708,071.00 197,880,665.00

CITY

Bais Batangas Bayawan Cadiz

Tagaytay Tarlac Tangub Urdaneta Victorias Zamboanga

130,159,136.00 348,186,756.00 162,248,610.00 187,721,031.00 176,367,959.00 918,013,016.00

152,445,295.00 405,611,581.00 180,640,621.00 207,129,386.00 194,162,687.00 1,009,972,704.00

SENATOR PIMENTEL. It is P20 million. Now we are raising it to P100 million of locally generated funds. SENATOR SOTTO. In other words, the P20 million before includes the IRA. SENATOR PIMENTEL. No, Mr. President. SENATOR SOTTO. It should not have been included? SENATOR PIMENTEL. The internal revenue share should never have been included. That was not the intention when we first crafted the Local Government Code. The financial capacity was supposed to be demonstrated by the municipality wishing to become a city by its own effort, meaning to say, it should not rely on the internal revenue share that comes from the government. Unfortunately, I think what happened in past conversions of municipalities into cities was, the Department of Budget and Management, along with the Department of Finance, had included the internal revenue share as a part of the municipality, demonstration that they are now financially capable and can measure up to the requirement of the Local Government Code of having a revenue of at least P20 million. SENATOR SOTTO. I am glad that the sponsor, Mr. President, has spread that into the Record because otherwise, if he did not mention the Department of Finance and the Department of Budget and Management, then I would have been blamed for the misinterpretation. But anyway, the gentleman is correct. That was the interpretation given to us during the hearings. So now, from P20 million, we make it P100 million from locally generated income as far as population is concerned. SENATOR PIMENTEL. As far as population is concerned, there will be no change, Mr. President. Still 150,000. SENATOR SOTTO. Still 150,000? SENATOR PIMENTEL. Yes. SENATOR SOTTO. And then the land area? SENATOR PIMENTEL. As to the land area, there is no change; it is still 100 square kilometers. SENATOR SOTTO. But before it was "either/or"?

What these petitioner cities were stating as a reduction of their respective IRA shares was based on a computation of what they would receive if respondent municipalities were not to become component cities at all. Of course, that would mean a bigger amount to which they have staked their claim. After considering these, it all boils down to money and how much more they would receive if respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national government for cities. Moreover, the debates in the Senate on R.A. No. 9009, should prove enlightening: SENATOR SOTTO. Mr. President, we just want to be enlightened again on the previous qualification and the present one being proposed. Before there were three SENATOR PIMENTEL. There are three requisites for a municipality to become a city. Let us start with the finance. SENATOR SOTTO. Will the distinguished sponsor please refresh us? I used to be the chairman of the Committee on Local Government, but the new job that was given to me by the Senate has erased completely my memory as far as the Local Government Code is concerned. SENATOR PIMENTEL. Yes, Mr. President, with pleasure. There are three requirements. One is financial. SENATOR SOTTO. All right. It used to be P20 million.

SENATOR PIMENTEL. That is correct. As long as it has one of the three requirements, basically, as long as it meets the financial requirement, then it may meet the territorial requirement or the population requirement. SENATOR SOTTO. So, it remains "or"? SENATOR PIMENTEL. We are now changing it into AND. SENATOR SOTTO. AND? SENATOR PIMENTEL. Yes. SENATOR SOTTO. I see. SENATOR PIMENTEL. That is the proposal, Mr. President. In other words SENATOR SOTTO. Does the gentleman not think there will no longer be any municipality that will qualify, Mr. President? SENATOR PIMENTEL. There may still be municipalities which can qualify, but it will take a little time. They will have to produce more babies. I do not knowexpand their territories, whatever, by reclamation or otherwise. But the whole proposal is geared towards making it difficult for municipalities to convert into cities. On the other hand, I would like to advert to the fact that in the amendments that we are proposing for the entire Local Government Code, we are also raising the internal revenue share of the municipalities. SENATOR SOTTO. I see. SENATOR PIMENTEL. So that, more or less, hindi naman sila dehado in this particular instance. SENATOR SOTTO. Well, then, because of that information, Mr. President, I throw my full support behind the measure. Thank you, Mr. President. SENATOR PIMENTEL. (Emphasis supplied)16 Thank you very much, Mr. President.

immediately prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement of R.A. No. 9009, acknowledging the "privilege" that they have already given to those newly-converted component cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or "class" as the respondent municipalities. Congress merely recognized the capacity and readiness of respondent municipalities to become component cities of their respective provinces. Petitioners complain of the projects that they would not be able to pursue and the expenditures that they would not be able to meet, but totally ignored the respondent municipalities obligations arising from the contracts they have already entered into, the employees that they have already hired, and the projects that they have already initiated and completed as component cities. Petitioners have completely overlooked the need of respondent municipalities to become effective vehicles intending to accelerate economic growth in the countryside. It is like the elder siblings wanting to kill the newly-borns so that their inheritance would not be diminished. Apropos is the following parable: There was a landowner who went out at dawn to hire workmen for his vineyard. After reaching an agreement with them for the usual daily wage, he sent them out to his vineyard. He came out about midmorning and saw other men standing around the marketplace without work, so he said to them, "You too go along to my vineyard and I will pay you whatever is fair." They went. He came out again around noon and mid-afternoon and did the same. Finally, going out in late afternoon he found still others standing around. To these he said, "Why have you been standing here idle all day?" "No one has hired us," they told him. He said, "You go to the vineyard too." When evening came, the owner of the vineyard said to his foreman, "Call the workmen and give them their pay, but begin with the last group and end with the first." When those hired late in the afternoon came up they received a full days pay, and when the first group appeared they thought they would get more, yet they received the same daily wage. Thereupon they complained to the owner, "This last group did only an hours work, but you have paid them on the same basis as us who have worked a full day in the scorching heat." "My friend," he said to one in reply, "I do you no injustice. You agreed on the usual wage, did you not? Take your

From the foregoing, the justness in the act of Congress in enacting the Cityhood Laws becomes obvious, especially considering that 33 municipalities were converted into component cities almost

pay and go home. I intend to give this man who was hired last the same pay as you. I am free to do as I please with my money, am I not? Or are you envious because I am generous?"17 Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the well-being of respondent municipalities, having seen their respective capacities to become component cities of their provinces, temporarily stunted by the enactment of R.A. No. 9009. By allowing respondent municipalities to convert into component cities, Congress desired only to uphold the very purpose of the LGC, i.e., to make the local government units "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," which is the very mandate of the Constitution. Finally, we should not be restricted by technical rules of procedure at the expense of the transcendental interest of justice and equity. While it is true that litigation must end, even at the expense of errors in judgment, it is nobler rather for this Court of last resort, as vanguard of truth, to toil in order to dispel apprehensions and doubt, as the following pronouncement of this Court instructs: The right and power of judicial tribunals to declare whether enactments of the legislature exceed the constitutional limitations and are invalid has always been considered a grave responsibility, as well as a solemn duty. The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution, and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the Constitution x x x, the case must be so clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity.18

WHEREFORE, the Motion for Reconsideration of the "Resolution" dated August 24, 2010, dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al. is GRANTED. The Resolution dated August 24, 2010 is REVERSED and SET ASIDE. The Cityhood LawsRepublic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491are declared CONSTITUTIONAL. SO ORDERED. DISSENTING OPINION CARPIO, J.: I dissent. In their motion for reconsideration, respondents argue that: (1) the petitions on their face do not call for the exercise of judicial power considering that the share of local government units in the Internal Revenue Allotments does not constitute rights which are legally demandable and enforceable; (2) the 16 Cityhood Laws are not unconstitutional; and (3) there was no violation of the equal protection clause. The crux of the controversy is whether the 16 Cityhood Laws are constitutional.1 As I have consistently opined, which opinion is concurred in by the majority members of this Court in the reinstated Decision of 18 November 2008 and in the assailed Resolution of 24 August 2010, the 16 Cityhood Laws are unconstitutional. First, the 16 Cityhood Laws violate Section 10, Article X of the 1987 Constitution. This provision reads: No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government codeand subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied) The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.2 The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a

city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy theP100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement. In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted afterthe effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws. Second, the 16 Cityhood Laws violate the equal protection clause of the Constitution. The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions: 1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law; 3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class.3 As I have previously stressed, there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or

determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11th Congress as against all other municipalities that want to convert into cities after the effectivity of RA 9009. In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. I repeat, Section 10, Article X of the Constitution expressly provides that "no x x x city shall be created x x x except in accordance with the criteria established in the local government code." This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution. Accordingly, I vote to DENY the motion for reconsideration of the Resolution dated 24 August 2010.

CONCURRING OPINION ABAD, J.: The Court has received flak on this case for supposed "flipflopping." But its shifting views are understandable because of the nearly even soundness of the opposing advocacies of the two groups of cities over the validity of the sixteen cityhood laws. 1 It also does not help that the membership of the Court has been altered by retirements and replacements at various stages from when it first decided to annul the laws, to when it reconsidered and upheld their validity, and to when it reverted to the original position and declared the laws involved unconstitutional. This to me is a healthy sign of democracy at work, the members being blind to the need to conform. In its Resolution of August 24, 2010, the Court reversed its December 21, 2009 Decision and denied the quest for cityhood of sixteen municipalities on the ground that the laws creating them violated Section 10, Article X of the 1987 Constitution2 and the equal protection clause.3 By that resolution, the majority also held that the Court erred in setting aside its November 18, 2008 decision since this latter had attained finality after the Courts denial of the second motion for reconsideration of the respondent cities, albeit the 6-6 deadlock vote and the corresponding entry of judgment. The Issues Presented The motion for reconsideration of respondent cities presents the following issues: 1. Whether or not the sixteen cityhood laws violate Section 10, Article X of the 1987 Constitution; 2. Whether or not such laws violate the equal protection clause; and 3. Whether or not the Court could still modify its decision dated November 18, 2008. Discussions One. In ruling that the sixteen cityhood laws violated Section 10 of Article X, the majority in the Court held that the creation of local government units must conform to the criterion prescribed in Section 450 of the Local Government Code.4 Since those laws,

which were passed after the enactment of Republic Act (R.A.) 9009,5covered municipalities that did not comply with the amended income requirement set by the Local Government Code, their conversion into cities were constitutionally infirm. The majority held that R.A. 9009 did not provide exemptions from its application. Although the provisions in the sixteen cityhood laws established exemptions from such requirement for the subject municipalities, the same can not be considered without violating Section 10, Article X, taking into account the legislatures primary intent in passing R.A. 9009.6 I take exception on how the majority of the Court selectively chose to focus on the sponsorship speech of Senator Aquilino Pimentel to come up with a "primary intent" theory for R.A. 9009. Surely, the intent of R.A. 9009 can not be based solely on that speech. The Court should not ignore the legislative history of R.A. 9009, including the pertinent exchanges during the interpellation of Senator Pimentel and Senate President Franklin Drilon, thus: THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard. We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration? SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill x x x [if] approved, retroact to the bills that are pending in the Senate for conversion from municipalities to cities. THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt? SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no

retroactivity clause, I do not think that the bill would have any retroactive effect. THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected. SENATOR PIMENTEL. These President.7 (Emphasis supplied) will not be affected Mr.

shifting positions on the issue, the Court should have adopted an attitude of becoming humility, upholding the constitutionality of the acts of a co-equal branch of government regarding a matter that properly fell within its powers. Two. The equal protection clause of the Constitution seeks to protect persons from being deprived of life, liberty, or property by the uneven application of statutes. In invoking this protection, it is incumbent on petitioner League of Cities to show, not only that the exemption granted to the sixteen cities amounted to arbitrary classification but, that the League or their members have been deprived of life, liberty or property, by reason of the exemption. The League of Cities has failed to discharge this burden. The Court explained in Ichong v. Hernandez9 the limits of the equal protection clause, thus: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists (sic) for making a distinction between those who fall within such class and those who do not. (Emphasis supplied) Far from baselessly favoring the sixteen municipalities, Congress gave them exemptions from the application of R.A. 9009 based on its sense of justice and fairness. Senator Alfredo Lim explained this in his sponsorship speech on House Joint Resolution No. 1, thus: x x x The imposition of a much higher income requirement for the creation of a city virtually delivered a lethal blow to the aspirations of the 24 municipalities to attain economic growth and progress. To them, it was unfair; like any sport changing the rules in the middle of the game. xxxx I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that

Two things are clear from the above exchanges. First, the legislature intended to exempt from the amended income requirement of R.A. 9009 the municipalities that had pending cityhood bills during the 11th Congress. As a matter of fact, such legislative intent was carried over to the 12th and the 13th Congress when the House of Representatives adopted Joint Resolutions8 that sought the exemption of twenty-four municipalities, including the sixteen, from the application of R.A. 9009. The continuing intent of Congress culminated in the inclusion of the exemption clause in the cityhood bills and their subsequent passage. Second, it is also clear from the above exchanges between Senators Pimentel and Drilon that Congress did not anymore insert an exemption clause from the income requirement of R.A. 9009 since such exchanges, when read by the Court, would already reveal the lawmakers intent regarding such matter. Besides, the exemption clause found in each of the cityhood laws serves as an affirmation of Congress intent to exempt them from the increased income requirement of R.A. 9009. These new cities have not altogether been exempted from the operation of the Local Government Code covering income requirement. They have been expressly made subject to the lower income requirement of the old code. There remains, therefore, substantial compliance with the provision of Section 10, Article X of the Constitution which provides that no city may be created "except in accordance with the criteria established in the local government code." The above interpretation accommodates the "primary" intention of Congress in preventing the mad rush of municipalities wanting to be converted into cities and the other intention of Congress to exempt the municipalities which have pending cityhood bills before the enactment of R.A. 9009. This is not to say that the views of the majority in the Court are absolutely illogical or wrong. They are admittedly plausible. But, given the unstable footing of such views as evidenced by its

they have all the necessary qualifications for city status using the criteria set forth under the Local Government Code prior to its amendment by R.A. 9009. xxxx In essence, the Cityhood bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of R.A. 9009. The proponents are invoking the exemption on the basis of justice and fairness. x x x10 (Emphasis supplied) What makes the injustice quite bitter is the fact that the sixteen cities did not merely have pending cityhood bills during the 11th Congress. They also met at that time the income criteria set under Section 450 of the then Local Government Code. The Court owes to these cities the considerations that justice and fair play demands. It can not be denied that substantial distinction sets them apart from the other cities. Further, petitioner League of Cities failed to show that the creation of the sixteen new cities discriminated against other cities. As the respondent cities point out, the majority of the present cities in our midst do not meet the P100 million minimum income requirement of the Local Government Code.11 It boggles the mind how these deficient cities can complain of denial of equal protection of the law. Besides, assuming an improper classification in the case of the sixteen cities, petitioner League of Cities can not invoke the equal protection clause since it has failed to show that it will suffer deprivation of life, liberty, or property by reason of such classification. Actually, the existing cities would not cease to exist nor would their liberties suffer by reason of the enactment of the sixteen cityhood laws. That their Internal Revenue Allotment (IRA) will be diminished does not amount to deprivation of property since the IRA is not their property until it has been automatically released.12 Mere expectancy in the receipt of IRA can not be regarded as the "property" envisioned in the Bill of Rights. Three. The majority maintain that the Court did not properly set aside its original decision dated November 18, 2008, which earlier invalidated the Cityhood laws since, procedurally, the Court had previously declared such decision already final.13 But a question had been raised regarding the propriety of such declaration of

finality, given a pending question respecting the consequence of a 6-6 vote on the constitutionality of the cityhood laws. At any rate, the Court has under extraordinary circumstances14 reconsidered its ruling despite an entry of judgment. It will not allow the technical rules to hinder it from rendering just and equitable relief.15 The issues presented in this case do not only involve rights and obligations of some parties but the constitutionality of the exercise by Congress of its power to make laws. There is no reason to uphold the November 18, 2008 decision since the petitioner League of Cities has failed to overcome the strong presumption in favor of the cityhood laws constitutionality. I vote to GRANT the motion for reconsideration of the respondent cities, REVERSE AND SET ASIDE the Resolution of the Court dated August 24, 2010, REINSTATE the Decision of the Court dated December 21, 2009, and DISMISS the Consolidated petitions of the League of Cities.

G.R. No. 176951

April 12, 2011

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte; Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177499 LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog,

represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178056 LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents. RESOLUTION BERSAMIN, J.: We consider and resolve the Ad Cautelam Motion for Reconsideration filed by the petitioners vis--vis the Resolution promulgated on February 15, 2011. To recall, the Resolution promulgated on February 15, 2011 granted the Motion for Reconsideration of the respondents presented against the Resolution dated August 24, 2010, reversed the Resolution dated August 24, 2010, and declared the 16 Cityhood Laws Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 constitutional. Now, the petitioners anchor their Ad Cautelam Motion for Reconsideration upon the primordial ground that the Court could no longer modify, alter, or amend its judgment declaring the Cityhood Laws unconstitutional due to such judgment having long become final and executory. They submit that the Cityhood Laws violated

Section 6 and Section 10 of Article X of the Constitution, as well as the Equal Protection Clause. The petitioners specifically ascribe to the Court the following errors in its promulgation of the assailed February 15, 2011 Resolution, to wit: I. THE HONORABLE COURT HAS NO JURISDICTION TO PROMULGATE THE RESOLUTION OF 15 FEBRUARY 2011 BECAUSE THERE IS NO LONGER ANY ACTUAL CASE OR CONTROVERSY TO SETTLE. II. THE RESOLUTION CONTRAVENES THE 1997 RULES OF CIVIL PROCEDURE AND RELEVANT SUPREME COURT ISSUANCES. III. THE RESOLUTION UNDERMINES THE JUDICIAL SYSTEM IN ITS DISREGARD OF THE PRINCIPLES OF RES JUDICATA AND THE DOCTRINE OF IMMUTABILITY OF FINAL JUDGMENTS. IV. THE RESOLUTION ERRONEOUSLY RULED THAT THE SIXTEEN (16) CITYHOOD BILLS DO NOT VIOLATE ARTICLE X, SECTIONS 6 AND 10 OF THE 1987 CONSTITUTION. V. THE SIXTEEN (16) CITYHOOD LAWS VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION AND THE RIGHT OF LOCAL GOVERNMENTS TO A JUST SHARE IN THE NATIONAL TAXES. Ruling Upon thorough consideration, we deny the Ad Cautelam Motion for Reconsideration for its lack of merit. I. Procedural Issues With respect to the first, second, and third assignments of errors, supra, it appears that the petitioners assail the jurisdiction of the Court in promulgating the February 15, 2011 Resolution, claiming that the decision herein had long become final and executory. They state that the Court thereby violated rules of procedure, and the principles of res judicata and immutability of final judgments. The petitioners posit that the controversy on the Cityhood Laws ended with the April 28, 2009 Resolution denying the respondents second motion for reconsideration vis--vis the November 18, 2008 Decision for being a prohibited pleading, and in view of the issuance of the entry of judgment on May 21, 2009. The Court disagrees with the petitioners.

In the April 28, 2009 Resolution, the Court ruled: By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009. The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention dated 20 April 2009 and the Petition in Intervention dated 20 April 2009 filed by counsel for Ludivina T. Mas, et al. are also DENIED in view of the denial of the second motion for reconsideration. No further pleadings shall be entertained. Let entry of judgment be made in due course. Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Consuelo Ynares-Santiago, Renato C. Corona, Minita Chico-Nazario, Teresita Leonardo-De Castro, and Lucas P. Bersamin. Chief Justice Reynato S. Puno and Justice Antonio Eduardo B. Nachura took no part. Justice Leonardo A. Quisumbing is on leave.1 Within 15 days from receipt of the April 28, 2009 Resolution, the respondents filed a Motion To Amend Resolution Of April 28, 2009 By Declaring Instead That Respondents "Motion for Reconsideration Of the Resolution Of March 31, 2009" And "Motion For Leave To File, And To Admit Attached Second Motion For Reconsideration Of The Decision Dated November 18, 2008 Remain Unresolved And To Conduct Further Proceedings Thereon, arguing therein that a determination of the issue of constitutionality of the 16 Cityhood Laws upon a motion for reconsideration by an equally divided vote was not binding on the Court as a valid precedent, citing the separate opinion of then Chief Justice Reynato S. Puno in Lambino v. Commission on Elections.2 Thus, in its June 2, 2009 Resolution, the Court issued the following clarification of the April 28, 2009 Resolution, viz: As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained." Thus, a decision becomes final and executory after 15 days from receipt of the denial of the first motion for reconsideration.

However, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited pleading. In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.3 As the result of the aforecited clarification, the Court resolved to expunge from the records several pleadings and documents, including respondents Motion To Amend Resolution Of April 28, 2009 etc. The respondents thus filed their Motion for Reconsideration of the Resolution of June 2, 2009, asseverating that their Motion To Amend Resolution Of April 28, 2009 etc. was not another motion for reconsideration of the November 18, 2008 Decision, because it assailed the April 28, 2009 Resolution with respect to the tie-vote on the respondents Second Motion For Reconsideration. They pointed out that the Motion To Amend Resolution Of April 28, 2009 etc. was filed on May 14, 2009, which was within the 15-day period from their receipt of the April 28, 2009 Resolution; thus, the entry of judgment had been prematurely made. They reiterated their arguments with respect to a tie-vote upon an issue of constitutionality. In the September 29, 2009 Resolution,4 the Court required the petitioners to comment on the Motion for Reconsideration of the Resolution of June 2, 2009 within 10 days from receipt. As directed, the petitioners filed their Comment Ad Cautelam With Motion to Expunge. The respondents filed their Motion for Leave to File and to Admit Attached "Reply to Petitioners Comment Ad Cautelam With Motion to Expunge", together with the Reply. On November 17, 2009, the Court resolved to note the petitioners Comment Ad Cautelam With Motion to Expunge, to grant the respondents Motion for Leave to File and Admit Reply to

Petitioners Comment Ad Cautelam with Motion to Expunge, and to note the respondents Reply to Petitioners Comment Ad Cautelam with Motion to Expunge. On December 21, 2009, the Court, resolving the Motion To Amend Resolution Of April 28, 2009 etc. and voting anew on the Second Motion For Reconsideration in order to reach a concurrence of a majority, promulgated its Decision granting the motion and declaring the Cityhood Laws as constitutional,5 disposing thus: WHEREFORE, respondent LGUs Motion for Reconsideration dated June 2, 2009, their "Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings," dated May 14, 2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED. The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL. SO ORDERED. On January 5, 2010, the petitioners filed an Ad Cautelam Motion for Reconsideration against the December 21, 2009 Decision.6 On the same date, the petitioners also filed a Motion to Annul Decision of 21 December 2009.7 On January 12, 2010, the Court directed the respondents to comment on the motions of the petitioners.8 On February 4, 2010, petitioner-intervenors City of Santiago, City of Legazpi, and City of Iriga filed their separate Manifestations with Supplemental Ad Cautelam Motions for Reconsideration. 9 Similar manifestations with supplemental motions for reconsideration were filed by other petitioner-intervenors, specifically: City of Cadiz on February 15, 2010;10 City of Batangas on February 17, 2010;11 and City of Oroquieta on February 24, 2010.12The Court required the

adverse parties to comment on the motions.13 As directed, the respondents complied. On August 24, 2010, the Court issued its Resolution reinstating the November 18, 2008 Decision.14 On September 14, 2010, the respondents timely filed a Motion for Reconsideration of the "Resolution" Dated August 24, 2010.15 They followed this by filing on September 20, 2010 a Motion to Set "Motion for Reconsideration of the Resolution dated August 24, 2010" for Hearing.16 On November 19, 2010, the petitioners sent in their Opposition [To the "Motion for Reconsideration of Resolution dated August 24, 2010"].17 On November 30, 2010,18 the Court noted, among others, the petitioners Opposition. On January 18, 2011,19 the Court denied the respondents Motion to Set "Motion for Reconsideration of the Resolution dated August 24, 2010" for Hearing. Thereafter, on February 15, 2011, the Court issued the Resolution being now challenged. It can be gleaned from the foregoing that, as the June 2, 2009 Resolution clarified, the respondents Second Motion For Reconsideration was not a prohibited pleading in view of the Courts voting and acting on it having the effect of allowing the Second Motion For Reconsideration; and that when the respondents filed their Motion for Reconsideration of the Resolution of June 2, 2009 questioning the expunging of their Motion To Amend Resolution Of April 28, 2009 etc. (which had been filed within the 15-day period from receipt of the April 28, 2009 Resolution), the Court opted to act on the Motion for Reconsideration of the Resolution of June 2, 2009 by directing the adverse parties through its September 29, 2009 Resolution to comment. The same permitting effect occurred when the Court, by its November 17, 2009 Resolution, granted the respondents Motion for Leave to File and Admit Reply to Petitioners Comment Ad Cautelam with Motion to Expunge, and noted the attached Reply. Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009, the Court: (a) rendered ineffective the tievote under the Resolution of April 28, 2009 and the ensuing denial of the Motion for Reconsideration of the Resolution of March 31, 2009 for lack of a majority to overturn; (b), re-opened the Decision of November 18, 2008 for a second look under reconsideration; and (c) lifted the directive that no further pleadings would be entertained. The Court in fact entertained and acted on the

respondents Motion for Reconsideration of the Resolution of June 2, 2009. Thereafter, the Court proceeded to deliberate anew on the respondents Second Motion for Reconsideration and ended up with the promulgation of the December 21, 2009 Decision (declaring the Cityhood Laws valid and constitutional). It is also inaccurate for the petitioners to insist that the December 21, 2009 Decision overturned the November 18, 2008 Decision on the basis of the mere Reflections of the Members of the Court. To be sure, the Reflections were the legal opinions of the Members and formed part of the deliberations of the Court. The reference in the December 21, 2009 Decision to the Reflections pointed out that there was still a pending incident after the April 28, 2009 Resolution that had been timely filed within 15 days from its receipt,20 pursuant to Section 10, Rule 51,21in relation to Section 1, Rule 52,22 of the Rules of Court. Again, the Court did act and deliberate upon this pending incident, leading to the issuance of the December 21, 2009 Decision (declaring the Cityhood Laws free from constitutional infirmity). It was thereafter that the Court rendered its August 24, 2010 Resolution (reinstating the November 18, 2008 Decision), to correct which the respondents Motion for Reconsideration of the "Resolution" Dated August 24, 2010 was filed. And, finally, the Court issued its February 15, 2011 Resolution, reversing and setting aside the August 24, 2010 Resolution. It is worth repeating that the actions taken herein were made by the Court en banc strictly in accordance with the Rules of Court and its internal procedures. There has been no irregularity attending or tainting the proceedings. It also relevant to state that the Court has frequently disencumbered itself under extraordinary circumstances from the shackles of technicality in order to render just and equitable relief.23 On whether the principle of immutability of judgments and bar by res judicata apply herein, suffice it to state that the succession of the events recounted herein indicates that the controversy about the 16 Cityhood Laws has not yet been resolved with finality. As such, the operation of the principle of immutability of judgments did not yet come into play. For the same reason is an adherence to the doctrine of res judicata not yet warranted, especially considering that the precedential ruling for this case needed to be revisited and set with certainty and finality. II. Substantive Issues

The petitioners reiterate their position that the Cityhood Laws violate Section 6 and Section 10 of Article X of the Constitution, the Equal Protection Clause, and the right of local governments to a just share in the national taxes. The Court differs. Congress clearly intended that the local government units covered by the Cityhood Laws be exempted from the coverage of R.A. No. 9009. The apprehensions of the then Senate President with respect to the considerable disparity between the income requirement of P20 million under the Local Government Code (LGC) prior to its amendment, and the P100 million under the amendment introduced by R.A. No. 9009 were definitively articulated in his interpellation of Senator Pimentel during the deliberations on Senate Bill No. 2157. The then Senate President was cognizant of the fact that there were municipalities that then had pending conversion bills during the 11th Congress prior to the adoption of Senate Bill No. 2157 as R.A. No. 9009,24 including the municipalities covered by the Cityhood Laws. It is worthy of mention that the pertinent deliberations on Senate Bill No. 2157 occurred on October 5, 2000 while the 11th Congress was in session, and the conversion bills were then pending in the Senate. Thus, the responses of Senator Pimentel made it obvious that R.A. No. 9009 would not apply to the conversion bills then pending deliberation in the Senate during the 11th Congress. R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative intent to exempt the municipalities covered by the conversion bills pending during the 11th Congress, the House of Representatives adopted Joint Resolution No. 29, entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on Joint Resolution No. 29. Even so, the House of Representatives readopted Joint Resolution No. 29 as Joint Resolution No. 1 during the 12th Congress,25 and forwarded Joint Resolution No. 1 to the Senate for approval. Again, the Senate failed to approve Joint Resolution No. 1. At this juncture, it is worthwhile to consider the manifestation of Senator Pimentel with respect to Joint Resolution No. 1, to wit:

MANIFESTATION OF SENATOR PIMENTEL House Joint Resolution No. 1 seeks to exempt certain municipalities seeking conversion into cities from the requirement that they must have at least P100 million in income of locally generated revenue, exclusive of the internal revenue share that they received from the central government as required under Republic Act No. 9009. The procedure followed by the House is questionable, to say the least. The House wants the Senate to do away with the income requirement of P100 million so that, en masse, the municipalities they want exempted could now file bills specifically converting them into cities. The reason they want the Senate to do it first is that Cong. Dodo Macias, chair of the House Committee on Local Governments, I am told, will not entertain any bill for the conversion of municipalities into cities unless the issue of income requirement is first hurdled. The House leadership therefore wants to shift the burden of exempting certain municipalities from the income requirement to the Senate rather than do it itself. That is most unusual because, in effect, the House wants the Senate to pass a blanket resolution that would qualify the municipalities concerned for conversion into cities on the matter of income alone. Then, at a later date, the House would pass specific bills converting the municipalities into cities. However, income is not only the requirement for municipalities to become cities. There are also the requirements on population and land area. In effect, the House wants the Senate to tackle the qualification of the municipalities they want converted into cities piecemeal and separately, first is the income under the joint resolution, then the other requirements when the bills are file to convert specific municipalities into cities. To repeat, this is a most unusual manner of creating cities. My respectful suggestion is for the Senate to request the House to do what they want to do regarding the applications of certain municipalities to become cities pursuant to the requirements of the Local Government Code. If the House wants to exempt certain municipalities from the requirements of the Local Government Code to become cities, by all means, let them do their thing. Specifically, they should act on specific bills to create cities and cite the reasons why the municipalities concerned are qualified to become cities. Only after the House shall have completed what they are expected to do under the law would it be proper for the Senate to act on specific bills creating cities.

In other words, the House should be requested to finish everything that needs to be done in the matter of converting municipalities into cities and not do it piecemeal as they are now trying to do under the joint resolution. In my long years in the Senate, this is the first time that a resort to this subterfuge is being undertaken to favor the creation of certain cities. I am not saying that they are not qualified. All I am saying is, if the House wants to pass and create cities out of certain municipalities, by all means let them do that. But they should do it following the requirements of the Local Government Code and, if they want to make certain exceptions, they can also do that too. But they should not use the Senate as a ploy to get things done which they themselves should do. Incidentally, I have recommended this mode of action verbally to some leaders of the House. Had they followed the recommendation, for all I know, the municipalities they had envisioned to be covered by House Joint Resolution No. 1 would, by now if not all, at least some have been converted into cities. House Joint Resolution No. 1, the House, in effect, caused the delay in the approval in the applications for cityhood of the municipalities concerned. Lastly, I do not have an amendment to House Joint Resolution No. 1. What I am suggesting is for the Senate to request the House to follow the procedure outlined in the Local Government Code which has been respected all through the years. By doing so, we uphold the rule of law and minimize the possibilities of power play in the approval of bills converting municipalities into cities.26 Thereafter, the conversion bills of the respondents were individually filed in the House of Representatives, and were all unanimously and favorably voted upon by the Members of the House of Representatives.27 The bills, when forwarded to the Senate, were likewise unanimously approved by the Senate.28 The acts of both Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the express articulations of the clear legislative intent to exempt the respondents, without exception, from the coverage of R.A. No. 9009. Thereby, R.A. No. 9009, and, by necessity, the LGC, were amended, not by repeal but by way of the express exemptions being embodied in the exemption clauses.

The petitioners further contend that the new income requirement of P100 million from locally generated sources is not arbitrary because it is not difficult to comply with; that there are several municipalities that have already complied with the requirement and have, in fact, been converted into cities, such as Sta. Rosa in Laguna (R.A. No 9264), Navotas (R.A. No. 9387) and San Juan (R.A. No. 9388) in Metro Manila, Dasmarias in Cavite (R.A. No. 9723), and Bian in Laguna (R.A. No. 9740); and that several other municipalities have supposedly reached the income of P100 million from locally generated sources, such as Bauan in Batangas, Mabalacat in Pampanga, and Bacoor in Cavite. The contention of the petitioners does not persuade. As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed as of 2006 to post an average annual income of P100 million based on the figures contained in the certification dated December 5, 2008 by the Bureau of Local Government. The large number of existing cities, virtually 50% of them, still unable to comply with the P100 million threshold income five years after R.A. No. 9009 took effect renders it fallacious and probably unwarranted for the petitioners to claim that the P100 million income requirement is not difficult to comply with. In this regard, the deliberations on Senate Bill No. 2157 may prove enlightening, thus: Senator Osmea III. And could the gentleman help clarify why a municipality would want to be converted into a city? Senator Pimentel. There is only one reason, Mr. President, and it is not hidden. It is the fact that once converted into a city, the municipality will have roughly more than three times the share that it would be receiving over the internal revenue allotment than it would have if it were to remain a municipality. So more or less three times or more. Senator Osmea III. Is it the additional funding that they will be able to enjoy from a larger share from the internal revenue allocations? Senator Pimentel. Yes, Mr. President. Senator Osmea III. Now, could the gentleman clarify, Mr. President, why in the original Republic Act No. 7160, known as the Local Government Code of 1991, such a wide gap was made between a municipalitywhat a municipality would earnand a

city? Because essentially, to a persons mind, even with this new requirement, if approved by Congress, if a municipality is earning P100 million and has a population of more than 150,000 inhabitants but has less than 100 square kilometers, it would not qualify as a city. Senator Pimentel. Yes. Senator Osmea III. Now would that not be quite arbitrary on the part of the municipality? Senator Pimentel. In fact, Mr. President, the House version restores the "or". So, this is a matter that we can very well take up as a policy issue. The chair of the committee does not say that we should, as we know, not listen to arguments for the restoration of the word "or" in the population or territorial requirement. Senator Osmea III. Mr. President, my point is that, I agree with the gentlemans "and", but perhaps we should bring down the area. There are certainly very crowded places in this country that are less than 10,000 hectares100 square kilometers is 10,000 hectares. There might only be 9,000 hectares or 8,000 hectares. And it would be unfair if these municipalities already earning P100,000,000 in locally generated funds and have a population of over 150,000 would not be qualified because of the simple fact that the physical area does not cover 10,000 hectares. Senator Pimentel. Mr. President, in fact, in Metro Manila there are any number of municipalities. San Juan is a specific example which, if we apply the present requirements, would not qualify: 100 square kilometers and a population of not less than 150,000. But my reply to that, Mr. President, is that they do not have to become a city? Senator Osmea III. Because of the income. Senator Pimentel. But they are already earning a lot, as the gentleman said. Otherwise, the danger here, if we become lax in the requirements, is the metropolis-located local governments would have more priority in terms of funding because they would have more qualifications to become a city compared to far-flung areas in Mindanao or in the Cordilleras, or whatever. Therefore, I think we should not probably ease up on the requirements. Maybe we can restore the word "or" so that if they do not have the 100 square kilometers of territory, then if they

qualify in terms of population and income, that would be all right, Mr. President. Senator Osmea III. Mr. President, I will not belabor the point at this time. I know that the distinguished gentleman is considering several amendments to the Local Government Code. Perhaps this is something that could be further refined at a later time, with his permission. So I would like to thank the gentleman for his graciousness in answering our questions. Senator Pimentel. I also thank the gentleman, Mr. President.29 The Court takes note of the fact that the municipalities cited by the petitioners as having generated the threshold income of P100 million from local sources, including those already converted into cities, are either in Metro Manila or in provinces close to Metro Manila. In comparison, the municipalities covered by the Cityhood Laws are spread out in the different provinces of the Philippines, including the Cordillera and Mindanao regions, and are considerably very distant from Metro Manila. This reality underscores the danger the enactment of R.A. No. 9009 sought to prevent, i.e., that "the metropolis-located local governments would have more priority in terms of funding because they would have more qualifications to become a city compared to the far-flung areas in Mindanao or in the Cordilleras, or whatever," actually resulting from the abrupt increase in the income requirement. Verily, this result is antithetical to what the Constitution and LGC have nobly envisioned in favor of countryside development and national growth. Besides, this result should be arrested early, to avoid the unwanted divisive effect on the entire country due to the local government units closer to the National Capital Region being afforded easier access to the bigger share in the national coffers than other local government units. There should also be no question that the local government units covered by the Cityhood Laws belong to a class of their own. They have proven themselves viable and capable to become component cities of their respective provinces. They are and have been centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots. In his speech delivered on the floor of the Senate to sponsor House Joint Resolution No. 1, Senator Lim recognized such unique traits,30viz:

It must be noted that except for Tandag and Lamitan, which are both second-class municipalities in terms of income, all the rest are categorized by the Department of Finance as first-class municipalities with gross income of at least P70 million as per Commission of Audit Report for 2005. Moreover, Tandag and Lamitan, together with Borongan, Catbalogan, and Tabuk, are all provincial capitals. The more recent income figures of the 12 municipalities, which would have increased further by this time, indicate their readiness to take on the responsibilities of cityhood. Moreover, the municipalities under consideration are leading localities in their respective provinces. Borongan, Catbalogan, Tandag, Batac and Tabuk are ranked number one in terms of income among all the municipalities in their respective provinces; Baybay and Bayugan are number two; Bogo and Lamitan are number three; Carcar, number four; and Tayabas, number seven. Not only are they pacesetters in their respective provinces, they are also among the frontrunners in their regions Baybay, Bayugan and Tabuk are number two income-earners in Regions VIII, XIII, and CAR, respectively; Catbalogan and Batac are number three in Regions VIII and I, respectively; Bogo, number five in Region VII; Borongan and Carcar are both number six in Regions VIII and VII, respectively. This simply shows that these municipalities are viable. Petitioner League of Cities argues that there exists no issue with respect to the cityhood of its member cities, considering that they became cities in full compliance with the criteria for conversion at the time of their creation. The Court considers the argument too sweeping. What we pointed out was that the previous income requirement of P20 million was definitely not insufficient to provide the essential government facilities, services, and special functions vis--vis the population of a component city. We also stressed that the increased income requirement ofP100 million was not the only conclusive indicator for any municipality to survive and remain viable as a component city. These observations were unerringly reflected in the respective incomes of the fifty-nine (59) members of the League of Cities that have still failed, remarkably enough, to be compliant with the new requirement of the P100 million threshold income five years after R.A. No. 9009 became law. Undoubtedly, the imposition of the income requirement of P100 million from local sources under R.A. No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of P100 million, no

research or empirical data buttressed the figure. Nor was there proof that the proposal took into account the after-effects that were likely to arise. As already mentioned, even the danger the passage of R.A. No. 9009 sought to prevent might soon become a reality. While the Constitution mandates that the creation of local government units must comply with the criteria laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth. Moreover, if we were now to adopt the stringent interpretation of the Constitution the petitioners are espousing, we may have to apply the same restrictive yardstick against the recently converted cities cited by the petitioners, and find two of them whose conversion laws have also to be struck down for being unconstitutional. The two laws are R.A. No. 938731 and R.A. No. 9388,32 respectively converting the municipalities of San Juan and Navotas into highly urbanized cities. A cursory reading of the laws indicates that there is no indication of compliance with the requirements imposed by the LGC, for, although the two local government units concerned presumably complied with the income requirement of P50 million under Section 452 of the LGC and the income requirement of P100 million under the amended Section 450 of the LGC, they obviously did not meet the requirements set forth under Section 453 of the LGC, to wit: Section 453. Duty to Declare Highly Urbanized Status.It shall be the duty of the President to declare a city as highly urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein. Indeed, R.A. No. 9387 and R.A. No. 9388 evidently show that the President had not classified San Juan and Navotas as highly urbanized cities upon proper application and ratification in a plebiscite by the qualified voters therein. A further perusal of R.A. No. 9387 reveals that San Juan did not qualify as a highly urbanized city because it had a population of only 125,558, contravening the required minimum population of 200,000 under Section 452 of the LGC. Such non-qualification as a component city was conceded even by Senator Pimentel during the deliberations on Senate Bill No. 2157.

The petitioners contention that the Cityhood Laws violated their right to a just share in the national taxes is not acceptable. In this regard, it suffices to state that the share of local government units is a matter of percentage under Section 285 of the LGC, not a specific amount. Specifically, the share of the cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing (25%). This share is also dependent on the number of existing cities, such that when the number of cities increases, then more will divide and share the allocation for cities. However, we have to note that the allocation by the National Government is not a constant, and can either increase or decrease. With every newly converted city becoming entitled to share the allocation for cities, the percentage of internal revenue allotment (IRA) entitlement of each city will decrease, although the actual amount received may be more than that received in the preceding year. That is a necessary consequence of Section 285 and Section 286 of the LGC. As elaborated here and in the assailed February 15, 2011 Resolution, the Cityhood Laws were not violative of the Constitution and the LGC. The respondents are thus also entitled to their just share in the IRA allocation for cities. They have demonstrated their viability as component cities of their respective provinces and are developing continuously, albeit slowly, because they had previously to share the IRA with about 1,500 municipalities. With their conversion into component cities, they will have to share with only around 120 cities. Local government units do not subsist only on locally generated income, but also depend on the IRA to support their development. They can spur their own developments and thereby realize their great potential of encouraging trade and commerce in the far-flung regions of the country. Yet their potential will effectively be stunted if those already earning more will still receive a bigger share from the national coffers, and if commercial activity will be more or less concentrated only in and near Metro Manila. III. Conclusion We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not only had conversion bills pending during the 11th Congress, but have also complied with the requirements of the LGC prescribed prior to its amendment by R.A. No. 9009. Congress undeniably gave these cities all the considerations that justice and fair play demanded. Hence, this Court should do no less by stamping its imprimatur to the clear and unmistakable

legislative intent and by duly recognizing the certain collective wisdom of Congress. WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is denied with finality. SO ORDERED. DISSENTING OPINION CARPIO, J.: This Court has made history with its repeated flip-flopping1 in this case. On 18 November 2008, the Court rendered a decision declaring unconstitutional the 16 Cityhood Laws. The decision became final after the denial of two motions for reconsideration filed by the 16 municipalities. An Entry of Judgment was made on 21 May 2009. The decision was executed (1) when the Department of Budget and Management issued LBM (Local Budget Memorandum) No. 61 on 30 June 2009, providing for the final Internal Revenue Allotment for 2009 due to the reversion of 16 newly created cities to municipalities; and (2) when the Commission on Elections issued Resolution No. 8670 on 22 September 2009, directing that voters in the 16 municipalities shall vote not as cities but as municipalities in the 10 May 2010 elections. In addition, fourteen Congressmen, having jurisdiction over the 16 respondent municipalities, filed House Bill 6303 seeking to amend Section 450 of the Local Government Code, as amended by Republic Act No. 9009. The proposed amendment was intended to correct the infirmities in the Cityhood Laws as cited by this Court in its 18 November 2008 Decision.2 Subsequently, the Court rendered three more decisions: (1) 21 December 2009, declaring the Cityhood Lawsconstitutional; (2) 24 August 2010, declaring the Cityhood Laws unconstitutional; and (3) 15 February 2011 declaring the Cityhood Laws constitutional. Clearly, there were three reversals or flipflops in this case. In the Resolution of 15 February 2011, the majority upheld the constitutionality of the 16 Cityhood Laws, declaring that (1) the Cityhood Laws do not violate Section 10, Article X of the Constitution; and (2) the Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the Constitution.

I reiterate my unwavering position from the start that the 16 Cityhood Laws are unconstitutional. I. The Cityhood Laws Government Code. are laws other than the Local

In sustaining the constitutionality of the 16 Cityhood Laws, the majority ruled in the Resolution of 15 February 2011 that "in effect, the Cityhood Laws amended RA No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory RA No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself." In the Resolution denying petitioner's motion for reconsideration, the majority stated that "RA 9009, and, by necessity, the LGC, were amended, x x x by way of the express exemptions embodied in the exemption clauses." This is egregious error. Nowhere in the plain language of the Cityhood Laws can this interpretation be discerned. Neither the title nor the body of the Cityhood Laws sustains such conclusion. Simply put, there is absolutely nothing in the Cityhood Laws to support the majority decision that the Cityhood Laws further amended the Local Government Code, which exclusively embodies the essential requirements for the creation of cities, including the conversion of a municipality into a city. An "amendment" refers to a change or modification to a previously adopted law.3 An amendatory law merely modifies a specific provision or provisions of a previously adopted law.4 Indisputably, an amendatory law becomes an integral part of the law it seeks to amend. On the contrary, each Cityhood Law contains a uniformly worded Separability Clause which expressly states: Separability Clause. - If, for any reason or reasons, any part or provision of this Charter shall be heldunconstitutional, invalid or inconsistent with the Local Government Code of 1991, the other parts or provisions hereof which are not affected thereby shall continue to be in full force and effect. Moreover, in cases where this Charter is silent or unclear, the pertinent provisions of the Local Government Code shall govern, if so provided therein.5 (Emphasis supplied)

Each Cityhood Law states that if any of its provisions is "inconsistent with the Local Government Code," the other consistent provisions "shall continue to be in full force and effect." The clear and inescapable implication is that any provision in each Cityhood Law that is "inconsistent with the Local Government Code" has no force and effect in short, void and ineffective. Each Cityhood Law expressly and unequivocally acknowledges the superiority of the Local Government Code, and that in case of conflict, the Local Government Code shall prevail over the Cityhood Law. Clearly, the Cityhood Laws do not amend the Local Government Code, and the Legislature never intended the Cityhood Laws to amend the Local Government Code. The clear intent and express language of the Cityhood Laws is for these laws to conform to the Local Government Code and not the other way around. To repeat, every Cityhood Law unmistakably provides that any provision in the Cityhood Law that is inconsistent with the Local Government Code is void. It follows that the Cityhood Laws cannot be construed to authorize the creation of cities that have not met the prevailing P100 million income requirement prescribed without exception in the Local Government Code. Moreover, Congress, in providing in the Separability Clause that the Local Government Code shall prevail over the Cityhood Laws, treats the Cityhood Laws as separate and distinct from the Local Government Code. In other words, the Cityhood Laws do not form integral parts of the Local Government Code but are separate and distinct laws. There is therefore no question that the Cityhood Laws are laws other than the Local Government Code. As such, the Cityhood Laws cannot stipulate an exception from the requirements for the creation of cities, prescribed in the Local Government Code, without running afoul of the explicit mandate of Section 10, Article X of the 1987 Constitution. This constitutional provision reads: No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government codeand subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied) The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code itself and not in any other law. There is only one Local

Government Code.6 To avoid discrimination and ensure uniformity and equality, the Constitution expressly requires Congress to stipulate in the Local Government Code itself all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. II. The increased income requirement of P100 million is neither arbitrary nor difficult to comply. The majority resolution of 15 February 2011 states that "the imposition of the P100 million average annual income requirement for the creation of component cities was arbitrarily made." The majority resolution further declares: "x x x there was no evidence or empirical data, such as inflation rates, to support the choice of this amount. The imposition of a very high income requirement of P100 million, increased from P20 million, was simply to make it extremely difficult for municipalities to become component cities." This is glaring error. In stating that there is no evidence to support the increased income requirement, the majority is requiring the Legislature, the sole lawmaking body under the Constitution, to provide evidence justifying the economic rationale, like inflation rates, for the increase in income requirement. The Legislature, in enacting RA No. 9009, is not required by the Constitution to show the courts data like inflation figures to support the increased income requirement. Besides, even assuming the inflation rate is zero, this Court cannot invalidate the increase in income requirement on such ground. A zero inflation rate does not bar the Legislature from increasing the income requirement to convert a municipality into a city, or increasing taxes or tax rates, or increasing capital requirements for businesses. This Court should not venture into areas of analyses obviously beyond its competence. As long as the increased income requirement is not impossible to comply, such increase is a policy determination involving the wisdom of the law, which exclusively lies within the province of the Legislature. When the Legislature enacts laws increasing taxes, tax rates, or capital requirements for businesses, the Court cannot refuse to apply such laws on the ground that there is no economic justification for such increases. Economic, political or social justifications for the enactment of laws go into the wisdom of the

law, outside the purview of judicial review. This Court cannot refuse to apply the law unless the law violates a specific provision of the Constitution. There is plainly nothing unconstitutional in increasing the income requirement from P20 million to P100 million because such increase does not violate any express or implied provision of the Constitution. The majority declares that the P100 million income requirement under RA No. 9009 was imposed "simply to make it extremely difficult for the municipalities to become component cities." In short, the majority is saying that the Legislature, out of sheer whim or spite at municipalities, increased the income requirement fromP20 million to P100 million. Thus, the majority applied the P20 million income requirement under the repealed law, not the P100 million income requirement under the prevailing law. Yet, the majority does not state that the P100 million income requirement is unconstitutional. The majority simply refuses to apply the prevailing law, choosing instead to apply a repealed law. There is neither law nor logic in the majority decision. The majority's conclusion that the Legislature increased the income requirement from P20 million to P100 million "simply to make it difficult for the municipalities to become component cities" is not only unfair to the Legislature, it is also grossly erroneous. Contrary to the majority's baseless conclusion, the increased income requirement of P100 million is not at all difficult to comply. As pointed out by petitioner, the cities of San Juan 7 and Navotas,8 which met the P100 million income requirement, were created at the same time as the enactment of the Cityhood Laws by the same 13th Congress.9 Prior to this, the City of Sta. Rosa, which also met the P100 million income requirement, was created through Republic Act No. 9264.10 Subsequently, the cities of Dasmarias in Cavite11 and Bian in Laguna12 were created in full compliance with the P100 million income criterion. Further disproving the majority's erroneous conclusion, an additional twenty-one (21) municipalities have satisfied the P100 million income requirement for the creation of cities.13 Accordingly, petitioner League of Cities has endorsed the cityhood application of these 21 municipalities.14 These municipalities are: Cabuyao and San Pedro (Laguna) Cainta, Taytay, and Binangonan (Rizal) Bacoor, Gen. Trias, Imus, Carmona, and Silang (Cavite)

San Pedro (Laguna) Pantabangan (Nueva Ecija) Calaca, Sto. Tomas, Bauan and Nasugbu ( Batangas) Mauban in (Quezon) Marilao, Sta. Maria and Norzagaray (Bulacan) Limay (Bataan) Compliance by these municipalities with the P100 million income requirement underscores the fact that the P100 million income requirement is not difficult to comply at all, contrary to the baseless and speculative conclusion in the majority decision. In short, the majority decision is based on patently and undeniably false and erroneous premises. Indisputably, right after the enactment of RA No. 9009, Congress passed laws converting municipalities into cities using the new P100 million income requirement. Subsequently, Congress enacted the 16 Cityhood Laws using the old P20 million income requirement. Thereafter, Congress again passed laws converting additional municipalities into cities using the P100 million income requirement. The 16 Cityhood Laws stick out like a sore thumb, starkly showing an obvious violation of the equal protection clause. The Cityhood Laws create distinctly privileged cities with only P20 million annual income, discriminating against cities with P100 million annual income created before and after the enactment of the Cityhood Laws. This kind of discrimination is precisely what Section 10, Article X of the Constitution seeks to prohibit when it commands that "no x x x city x x x shall be created x x x except in accordance with the criteria established in the local government code." The majority harp on the fact that 59 existing cities had failed as of 2006 to post an average annual income ofP100 million. Suffice it to state that there is no Constitutional or statutory requirement for the 59 existing cities to comply with the P100 million income requirement. Obviously, these cities were already cities prior to the amendment of the Local Government Code providing for the increased income requirement of P100 million. In other words, at the time of their creation, these cities have complied with the criteria prescribed under the old Local Government Code for the creation of cities, and

thus are not required to comply with the P100 million income requirement of the prevailing Local Government Code. It is utterly misplaced and grossly erroneous to cite the "non-compliance" by the 59 existing cities with the increased income requirement of P100 million to conclude that the P100 million income requirement is arbitrary and difficult to comply. Moreover, as stated, the majority do not find the increased income requirement of P100 million unconstitutional or unlawful. Unless the P100 million income requirement violates a provision of the Constitution or a law, such requirement for the creation of a city must be strictly complied with. Any local government unit applying for cityhood, whether located in or outside the metropolis and whether within the National Capital Region or not, must meet the P100 million income requirement prescribed by the prevailing Local Government Code. There is absolutely nothing unconstitutional or unlawful if the P100 million income requirement is easily complied with by local government units within or near the National Capital Region. The majority's groundless and unfair discrimination against these metropolis-located local government units must necessarily fail. Further, that San Juan and Navotas had not allegedly been classified by the President as highly urbanized cities, pursuant to Section 453 of the Local Government Code, does not signify that these cities do not meet the P100 million income requirement. In fact, the majority concedes that it is presumed that San Juan and Navotas cities have complied with the P100 million income requirement. Besides, it is totally pointless to fault the cities of San Juan and Navotas for an unperformed duty of the President. III. The reduction of the share in the Internal Revenue Allotment will adversely affect the cities' economic situation. In the Resolution of 15 February 2011, the majority declared that petitioner's protest against the reduction of their just share in the Internal Revenue Allotment "all boils down to money," criticizing petitioners for overlooking the alleged need of respondent municipalities to become channels of economic growth in the countryside. The majority gravely loses sight of the fact that "the members of petitioner League of Cities are also in need of the same resources, and are responsible for development imperatives that need to be done for almost 40 million Filipinos, as compared to only 1.3 million

Filipinos in the respondent municipalities." As pointed out by petitioner, "this is just about equal to the population of Davao City, whose residents, on a per capita basis, receive less than half of what respondent municipalities' residents would receive if they become cities. Stated otherwise, for every peso that each Davaoeo receives, his counterpart in the respondent municipality will receive more than two pesos." In addition, the majority conveniently forgets that members of the LCP have more projects, more contractual obligations, and more employees than respondent municipalities. If their share in the Internal Revenue Allotment is unreasonably reduced, it is possible, even expected, that these cities may have to lay-off workers and abandon projects, greatly hampering, or worse paralyzing, the delivery of much needed public services in their respective territorial jurisdictions. Obviously, petitioner's protest does not boil down to money. It boils down to equity and fairness, rational allocation of scarce resources, and above all, faithful compliance with an express mandatory provision of the Constitution. No one should put a monetary value to compliance with an express command of the Constitution. Neither should any one, least of all this Court, disregard a patent violation of the Constitution just because the issue also involves monetary recovery. To do so would expose the stability of the Constitution to the corrosive vagaries of the marketplace. IV. Not substantial compliance, but outright violation of the Constitution. In his Concurring Opinion to the Resolution of 15 February 2011, Justice Roberto A. Abad stated, "These new cities have not altogether been exempted from the operation of the Local Government Code covering income requirement. They have been expressly made subject to the lower income requirement of the old code.There remains, therefore, substantial compliance with the provision of Section 10, Article X of the Constitution." This is gross error. There is a wide disparity an P80 million difference in the income requirement of P20 million under the old Local Government Code and the P100 million requirement under the prevailing Local Government Code. By any reasonable yardstick known to man

since the dawn of civilization, compliance with the old income requirement, which is only 20% compliance with the new income requirement under the prevailing law, cannot be deemed "substantial compliance." It is like saying that those who obtain a general average of 20% in the Bar Examinations are in "substantial compliance" with the requirement for admission to the Bar where the highest possible score is 100%. RA No. 9009 amended the Local Government Code precisely because the criteria in the old Local Government Code were no longer sufficient. In short, RA No. 9009 repealed the old income requirement of P20 million, a requirement that no longer exists in our statute books. Compliance with the old income requirement is compliance with a repealed, dead, and non-existent law a totally useless, futile, and empty act. Worse, compliance with the old requirement is an outright violation of the Constitution which expressly commands that "no x x x city x x x shall be created x x x except in accordance with the criteria established in the local government code." To repeat, applying what Justice Abad calls "the lower income requirement of the old code" is applying a repealed, dead, and non-existent law, which is exactly what the majority decision has done. The invocation here of "substantial compliance" of the Constitution reminds us of what Justice Calixto Zaldivar wrote in his dissenting opinion in Javellana v. Executive Secretary:15 "It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution." The same can be said in this case. A final point. There must be strict compliance with the express command of the Constitution that "no city x x x shall be created x x x except in accordance with the criteria established in the local government code." Substantial compliance is insufficient because it will discriminate against all other cities that were createdbefore and after the enactment of the Cityhood Laws in strict compliance with the criteria in the Local Government Code, as amended by RA No. 9009. The conversion of municipalities into new cities means an increase in the Internal Revenue Allotment of the former municipalities and a corresponding decrease in the Internal Revenue Allotment of all other existing cities. There must be strict, not only substantial, compliance with the constitutional requirement because the economic lifeline of existing cities may be seriously affected. Thus,

the invocation of "substantial compliance" with constitutional requirements is clearly misplaced in this case. V. Conclusion To repeat, the Constitution expressly requires Congress to stipulate in the Local Government Code itself all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. To avoid discrimination and ensure uniformity and equality, such criteria cannot be embodied in any other law except the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provide an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA No. 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution. Moreover, by express provision in the Separability Clause of each Cityhood Law, in case of inconsistency between the Cityhood Law and the Local Government Code, the latter shall prevail. Thus, the P100 million income requirement in the Local Government Code prevails over the P20 million income requirement under the Cityhood Laws.1avvphil Finally, this Court must be true to its sworn duty to uphold, defend, and protect the Constitution fully and faithfully, without "indulging in sophistry" or seeking refuge behind a patently dubious invocation of "substantial compliance" with the Constitution. Accordingly, I vote to GRANT the motion for reconsideration of the League of Cities of the Philippines. CONCURRING OPINION ABAD, J.: I fully concur in the resolution that Justice Lucas Bersamin wrote for the majority. I would want, however, to reply briefly to the charge that the Court has been guilty of "flip-plopping" in this case. Since the Court is a collegial body, the implication is that the majority of its members have collectively flip-flopped in their decisions. But the charge is unfair as it is baseless. The Court is not a living person whose decisions and actions are ruled by the whim of one

mind. As a collegial body, the Court acts by consensus among its fifteen members. And total agreement is not always attainable. This is especially true where the political, social, or economic stakes involved are high or affect a great number of people and the views of the individual members are closely divided. The ideal is to have an early consensus among the Courts members in any given dispute. But, given the variety of their learning and experiences as former judges, trial lawyers, government counsels, academicians, and administrators, that is hardly an easy objective. Justices look at cases through different lenses. Disagreements in their conclusions can and often happen. Thus, they are forced to take a vote and the will of the majority prevails. It is when the votes among its members are closely divided as in this case that the decision of the Court could, on a motion for reconsideration, swing to the opposite side and, at times on a second motion for reconsideration, revert to the original side. The losers often malign this as flip-flopping by the Court. This of course is a lie in the sense that it tends to picture the Court as a silly, blundering, idiot which cannot make up its mind. The fact is that the shifts in the Courts decisions in this case were not at all orchestrated as the circumstances will show. They were the product of honest disagreements. Congress passed a number of laws converting sixteen municipalities into cities. The League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities involved did not meet the P100 million minimum income requirement of the Local Government Code. For their part, the municipalities countered that their laws constituted valid legislative amendments of such requirement. The Court was divided in its original decision of November 18, 2008 in the case.1awphi1 A majority of six Justices voted to annul the laws, five members dissented, and four took no part (6-5-4), as follows: Majority (annul) Minority (uphold) No Part

2. J. Carpio 3. J. Martinez 4. J. Morales 5. J. Velasco 6. J. Brion

2. J. Azcuna 3. J. Nazario 4. J. Reyes 5. J. De Castro

2. J. Tinga 3. J. Nachura 4. J. Santiago (on leave)

Notably, the majority won by just 1 vote. Their lead firmed up, however, with an increase of 2 votes when the Court took up the motion for reconsideration of the sixteen municipalities on March 31, 2009, thus: Majority (annul) Minority (uphold) No Part 1. Puno C.J.

1. J. 1. J. Santiago Quisumbing 2. J. Carpio 3. J. Martinez 4. J. Morales 5. J. Tinga 6. J. Brion 7. J. Peralta 2. J. Corona 3. J. Nazario 4. J. Velasco 5. J. De Castro

2. J. Nachura

1. J. 1. J. Corona Quisumbing

1. C.J. Puno

In the above, Justice Velasco opted to leave the majority, but he was quickly replaced by J. Tinga, who decided to take part in the second voting, and Justice Peralta, a newcomer. The minority maintained its five votes because, although Justices Reyes and

Azcuna retired, Justice Velasco who changed side and Justice Santiago who now took part replaced them. Chief Justice Puno and Justice Nachura stayed out of it. The vote was 7-5-2. But when on April 28, 2009 the Court acted on the sixteen municipalities second motion for reconsideration, the vote resulted on a tie. Thus: Even (annul) 1. J. Carpio 2. J. Martinez 3. J. Morales votes Even (uphold) 1. J. Santiago 2. J. Corona 3. J. Nazario 4. J. Velasco (on leave) 5. J. De Castro 6. J. Bersamin votes No Part 1. C.J. Puno 2. J. Nachura 3. J. Quisumbing

1. J. Corona 2. J. Velasco 3. J. De Castro 4. J. Bersamin 5. J. Abad 6. J. Villarama

1. J. Carpio 2. J. Morales 3. J. Brion 4. J. Peralta

1. C.J. Puno 2. J. Nachura 3. J. Castillo Del

4. J. Tinga 5. J. Brion 6. J. Peralta

In the above, two Justices, Tinga and Martinez, from the former majority retired, leaving their group just 4 votes. On the other hand, although two Justices, Santiago and Nazario, also retired from the former minority, two new members, Justices Abad and Villarama, joined their rank. Justice Del Castillo, a new member, did not take part like the rest. The new vote was 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the laws that converted the sixteen municipalities into cities. But their victory was short-lived. When the Court voted on the motion for reconsideration of the losing League of Cities on August 24, 2010, three new members, Justices Perez, Mendoza, and Sereno, joined the Court. The majority shifted anew, thus: Majority (annul) 1. J. Carpio 2. J. Morales 3. J. Brion 4. J. Peralta Minority (uphold) 1. C.J. Corona 2. J. Velasco 3. J. De Castro 4. J. Bersamin No Part 1. J. Nachura 2. J. Castillo Del

In the above, the majority lost 1 vote owing to Justice Quisumbing going on leave. On the other hand, the minority gained 1 vote from Justice Bersamin, a newcomer. Three took no part, resulting in a vote of 6-6-3. The Court was divided in its interpretation of this 6-6 result. One group argued that the failure of the minority to muster a majority vote had the effect of maintaining the Courts last ruling. Some argued, however, that since the Constitution required a majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in favor of the sixteen municipalities, thus: Majority (uphold) Minority (annul) No Part

5. J. Villarama 6. J. Mendoza 7. J. Sereno

5. J. Abad 6. J. Perez

One. The Justices did not decide to change their minds on a mere whim. The two sides filed motions for reconsideration in the case and the Justices had no options, considering their divided views, but perform their duties and vote on the same on the dates the matters came up for resolution. The Court is no orchestra with its members playing one tune under the baton of a maestro. They bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that filters out blind or dictated conformity. Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty Justices stood by their original positions. They never reconsidered their views. Only three did so and not on the same occasion, showing no wholesale change of votes at any time. Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of the twenty-three Justices flipped-flopped in his vote. Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. Not one of the three flipped-flopped since they never changed their votes again afterwards. Notably, no one can dispute the right of a judge, acting on a motion for reconsideration, to change his mind regarding the case. The rules are cognizant of the fact that human judges could err and that it would merely be fair and right for them to correct their perceived errors upon a motion for reconsideration. The three Justices who changed their votes had the right to do so. Five. Evidently, the voting was not a case of massive flip-flopping by the Justices of the Court. Rather, it was a case of tiny shifts in the votes, occasioned by the consistently slender margin that one view held over the other. This reflected the nearly even soundness of the opposing advocacies of the contending sides. Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an equal number. It is such that the resulting change in the combinations of minds produced multiple shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views of their predecessors.

Notably, Justice Villarama changed his vote and joined the rank of those who opposed the conversion of the sixteen municipalities into cities. Two new Justices (Mendoza and Sereno) joined the new majority of seven that voted to annul the subject laws. On the other hand, although one of their members left for the other side, the 6 votes of the new minority remained because a new member, Justice Perez, joined it. The sixteen municipalities filed a motion for reconsideration of the new decision and voting took place on February 15, 2011. Justice Mendoza changed side and voted to uphold the constitutionality of the laws of the sixteen municipalities, resulting in a shift in the majority as follows: Majority (uphold) 1. J. Corona 2. J. Velasco 3. J. De Castro 4. J. Bersamin 5. J. Abad 6. J. Perez 7. J. Mendoza To recapitulate what took place in this case: Minority (annul) 1. J. Carpio 2. J. Morales 3. J. Brion 4. J. Peralta 5. J. Villarama 6. J. Sereno No Part 1. J. Nachura 2. J. Castillo Del

Indeed, preordained conformity is anathema to a democratic system. The charge of flip-flopping by the Court or its members is unfair.

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-squarekilometer 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 (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.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 Farias 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 judiciarys 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 P100 million income requirement, since the said LGUs had pending cityhood bills long before the enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision exempting the municipality covered from the P100 million income requirement. In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply with either the population or territorial requirement for the creation of a province under Section 461 of the Local Government Code.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. DISSENTING OPINION PEREZ, J.: Every statute has in its favor the presumption of constitutionality. This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts. The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. This Court, however, may declare a law, or portions thereof, unconstitutional, where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a

doubtful or argumentative one. In other words, the grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain. The spirit of the foregoing pronouncements enunciated in Cawaling, Jr. v. Executive Secretary1 animates this dissent to the denial of the motion for reconsideration of the February 10, 2010 En Banc Decision handed down in the case at bench, declaring as unconstitutional Republic Act No. 9355, as well the provision in Article 9(b) of the Rules and Regulations Implementing the Local Government Code of 1991 which states that, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands." The factual and procedural antecedents are not in dispute. A group of islands composed of the municipalities of Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose and Tubajon with an aggregate land area of 802.12 square kilometers, the Dinagat Islands form part of the province of Surigao Del Norte alongside the Mainland, Surigao City, Siargao Island and Bucas Grande. In support of the house bill for the creation of the Dinagat Islands as a separate province, it appears that a special census conducted by the province of Surigao Del Norte and the National Statistics Office (NSO) District Census Coordinator in July 2003 yielded a population count of 371,576 inhabitants. With the certification from the Bureau of Local Government Finance that the proposed province had an average annual income of P82,696,433.23, the house bill for the creation of the Province of Dinagat Islands was passed by the Senate and House of Representatives on August 14, 2006 and August 28, 2006, respectively. On October 2, 2006, President Gloria Macapagal-Arroyo approved and enacted said house bill into law as Republic Act No. 9355, entitled, "An Act Creating the Province of Dinagat Islands." The plebiscite conducted by the Commission on Elections (COMELEC) on December 3, 2006 in the local government units directly affected by the creation of the new province yielded 69,943 affirmative votes and 63,502 negative votes. Subsequent to the proclamation of said vote by the Plebiscite Provincial Board of Canvassers on December 3, 2006, the President appointed a new set of provincial officials who took their oath of office on January 26, 2007. In the May 14, 2007 synchronized National and Local Elections, the constituents of the new province elected a new set of provincial officers who eventually assumed office on July 1, 2007. Petitioners initially assailed the constitutionality of Republic Act No. 9355 in the petition for certiorari and prohibition docketed before

the Court as G.R. No. 175158. Undaunted by the dismissal of said petition on technical grounds and the denial of their motion for reconsideration thereof, petitioners filed the petition for certiorari to which the case at bench traces its provenance. Reiterating the arguments in their previous petition, petitioners maintained that the law failed to comply with either the land area and population requirements prescribed under the Local Government Code of 1991. In addition to the invalidation of the law as unconstitutional, petitioners prayed for the nullification of the appointment and election of the provincial officers of Dinagat Islands as well as the return of its municipalities and districts to the province of Surigao Del Norte. On February 10, 2010, a decision was rendered declaring Republic Act No. 9355 unconstitutional for failure to comply with the land area and population requirements under the Local Government Code, and giving short shrift to respondents reliance on Article 9(b) of the Rules and Regulations Implementing the Local Government Code of 1991 (IRR) to the effect that the requirement of a contiguous territory of at least 2,000 square kilometers does not apply when the proposed province is composed of one or more islands. The decision invoked the case of Tan v. COMELEC2 which declared that the term "territory" only refers to the mass of land area and excludes the waters over which the local government unit exercises control. Likewise brushing aside the result of the special census for lack of certification from the NSO, the decision also ruled that the population requirement was not complied with, based on the NSO 2000 Census of Population which pegged the official population of Dinagat Islands at 106,951. After a circumspect consideration of the arguments for and against the validity of the creation of the Province of Dinagat Islands, I am convinced, with all due respect, that a reconsideration of the decision is in order. The creation of local government units is governed by Section 10, Article X of the Constitution which provides that, "(n)o province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." Correlatively, Section 461 of the Local Government Code prescribes the criteria for the creation of a province in the following wise:

SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as 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. Considered the most important factor insofar as the creation of a new province is concerned, the income requirement under the Local Government Code has been more than four-fold complied with, as may be gleaned from the Bureau of Local Government Finance Certification that, based on the 1991 constant prices, the average annual income of the Province of Dinagat Islands is P82,696,433.23. Despite its aggregate land area of 802.12 square kilometers only, the new province has also measured up to the territorial requirement since, being comprised of two or more islands, it is exempted from the contiguous 2,000 square-kilometer land mass prescribed under Section 461 (a)[i]. Although the exemption in paragraph (b) appears to extend only to the requirement of contiguity, I am convinced by Mr. Justice Antonio Eduardo B. Nachuras opinion that, from the tenor of the same provision, the contiguity and land area requirements cannot be considered separate and distinct from each other. As eloquently stated in his dissent: By rough analogy, the two components are like dicephalic conjoined twins two heads are attached to a single body. If one head is separated from the other, then the twins die. In the same manner, the law, by providing in paragraph (b) of Section 461 that

the territory need not be contiguous if the same is comprised of islands, must be interpreted as intended to exempt such territory from the land area component of 2,000 sq. km. Because the two component requirements are inseparable, the elimination of contiguity from the territorial criterion has the effect of a 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. 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 contact by land. Thus, insofar as islands are concerned, they are deemed contiguous although separated by wide spans of navigable deep waters, with the exception of the high seas, because all lands separated by water touch one another, in a sense, beneath the water. The provision, then, as worded, only means that the exemption in paragraph (b) refers to both the components of territory, that is, contiguity and land area, and not merely the first, standing alone. For, indeed, why will the law still exempt the islands from the requirement of contiguity when they are already legally contiguous? Compliance with the land area requirement by the Province of Dinagat Islands is cast in even relief when gauged from the clear and unambiguous language of the IRR which was formulated in accordance with Section 533 of the Local Government Code, by the Oversight Committee chaired by the Executive Secretary and composed of representatives from the Senate,3 the House of Representatives,4 the Cabinet5 and the leagues of local government units.6 Partaking the nature of executive construction and, for said reason, deserving of great weight and respect,7 Article 9 of the IRR distinctly provides as follows: ART. 9. Provinces. (a) Requisites for creation. A province shall not be created unless the following requisites on income and either population or land area are present: (1) Income An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as 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 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. Alongside declaring Republic Act No. 9355 as unconstitutional for non-compliance with the land area requirement, however, the ponencia also declared the underscored portion of the foregoing IRR provision null and void for going beyond the criteria prescribed by Section 461 of the Local Government. Citing the Courts November 18, 2008 ruling in League of Cities of the Philippines v. COMELEC,8 it held that "(t)he Constitution requires that the criteria for the creation of a province, including any exemption from such criteria, must all be written in the Local Government Code." In case of discrepancy between the basic law and the rules and regulations implementing the same, the ponencia went on to state that, "the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law." The League of Cities case concerned the constitutionality of sixteen cityhood laws, each converting the municipalities covered into a city, for non-compliance with Republic Act. No. 9009 which amended Section 450 of the Local Government Code by increasing the income requirement from P20,000,000.00 to P100,000,000.00 for a municipality to be converted into a component city. Initially declared unconstitutional in the aforesaid November 18, 2008 Decision, the constitutionality of the subject cityhood laws were eventually upheld in the December 21, 2009 Decision subsequently rendered in the case on the ground, among others, that the Local Government Code, despite its being the ideal repository for the

same, need not be the only vessel of all the criteria for the creation of local government units. Taking into consideration the circumstances under which Republic Act No. 9009 and said cityhood laws were enacted, the Court ruled as follows: Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature. In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid. Torres v. Limjap could not have been more precise: The intent of a Statute is the Law. If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature. When viewed in the light of the legislative intent underlying Section 461 of the Local Government Code, I respectfully submit that Article 9 of the IRR is not in conflict with the criteria for the creation of provinces ensconced in said provision of the basic law. Unlike Section 1979 of Batas Pambansa Blg. 337, its counterpart provision in the predecessor of the present Local Government Code, Section 461 does not give equal premium to the income, land area and population requirements for the creation of new provinces. This is readily evident from the fact that, after prescribing the P20,000,000.00 income requirement, Section 461 simply mandates compliance with either the requirement of a contiguous territory of 2,000 square kilometers or a population of not less than 250,000. Already quoted in Justice Nachuras dissent to the ponencia, the following transcript of the congressional deliberations on the house bill from which the present Local Government Code originated is particularly enlightening regarding the legislative intent for said new requirements, viz.:

HON. ALFELOR: Income is mandatory. We can even have this doubled because we thought CHAIRMAN CUENCO: In other words, the primordial considerations here is the economic viability of the new local government unit, the new province? xxxx 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 are 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 new investments from the private sector. This is now the concern of their 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 200,000 thousand, you will never be able to become a province because nobody wants to go to that place. Why? Because you never have any reason for economic viability. xxxx CHAIRMAN PIMENTEL: Okay, what about land area? HON. LUMAUIG: 1,500 square kilometers. HON. ANGARA: Walang problema yon, thats 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 were seeing now is that the administrative efficiency is no longer there because the land areas that we are giving to our governors is so wide that no one man could possibly administer all of the complex machineries that are needed. Secondly, when you say delivery of basic services, as pointed out by Cong. Alfelor, there are sections of the province which have never been visited by public officials precisely because they dont have the time nor the energy anymore because it is so wide. Now, by compressing the land area and by reducing the population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces, which is to deliver basic services and to make it more efficient in administration. CHAIRMAN PIMENTEL: Yeah, thats correct, but on the assumption that the province is able to do it without being a burden to the national government. Thats the assumption. HON. LAGUADA: Thats why were 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." In exempting provinces composed of one or more islands from both the contiguity and land area requirements, Article 9 of the IRR cannot be considered inconsistent with the criteria under Section 461 of the Local Government Code. Far from being absolute regarding application of the requirement of "a contiguous territory of at least 2,000 square kilometers as certified by the Land Management Bureau," Section 461 allows for said exemption by providing, under paragraph (b) thereof, that "(t)he territory need not be contiguous if (the new province) comprises two or more islands or is separated by a chartered city or cities which do not contribute to the income of the province." For as long as there is

compliance with the income requirement, the legislative intent is, after all, to the effect that the land area and population requirements may be overridden by the established economic viability of the proposed province. In the aforesaid December 21, 2009 Decision in the League of Cities case, the Court sagely ruled that "(t)he legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice. To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself, resort should be to the rule that the spirit of the law controls its letter." Indeed, the forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature.10 Consequently, courts will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act.11 Without taking into consideration the aforesaid legislative intent, the ponencia clearly resorted to a strict verba legis interpretation in invalidating the portion of Article 9 of the IRR which states that, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands." In determining that the Province of Dinagat Islands failed to comply with the land area requirement, it also relied heavily on the Courts pronouncements in Tan v. COMELEC12 where the principal issue was, however, the invalidity of the creation of the province of Negros Del Norte on account of the fact that the plebiscite therefor conducted did not include the parent province of Negros Oriental. Although the collateral issue of compliance with the land area requirement was resolved pursuant to Section 197 of Batas Pambansa Blg. 337 and not Section 461 of the present Local Government Code, the ponencia further ruled that the requirements under both laws are similar and that there is no reason for a change in the definitions, usage or meaning of the terms "territory" and "contiguous" in said laws. As hereinbefore observed, however, Section 197 of Batas Pambansa Blg. 337, unlike Section 461 of the Local Government Code of 1991, gave equal premium to the income, land area and population requirements for the creation of new provinces. Even prescinding from the current decrease in population and land area requirement as well as the increase in the income requirement, it cannot, therefore, be validly argued that the requisites for the

creation of a province under both laws are similar. Given the lesser importance accorded the land area and population under Section 461 of the present Local Government Code, I find that the propriety of applying the restrictive interpretation of the land area requirement in Tan v. COMELEC to the creation of the Province of Dinagat Islands is not as cut and dried as the ponencia considered it to be. More so, when it is borne in mind that, unlike the one conducted for the proposed province of Negros Del Norte, the plebiscite conducted for said new province unquestionably complied with the Constitutional requirement of inclusion of "the political units directly affected." In ordaining the enactment of a local government code, Section 3, Article X of the Constitution envisioned one "which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization." Paying attention to this principle, Section 2(a) of the Local Government Code of 1991 provides as follows: Sec. 2 Declaration of Policy (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Towards this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units. To my mind, it was undoubtedly in the service of the foregoing principles and policies that the house bill creating the Province of Dinagat Islands was passed by Congress and enacted into law by the President. As an organic law, Republic Act No. 9355 also garnered the majority of the votes cast in the plebiscite conducted not only in the municipalities constituting the newly created province but also the parent province of Surigao Del Norte. During the May 14, 2007 synchronized National and Local Elections, the constituents of the Province of Dinagat Islands have, in fact, already elected their provincial officers who are about to complete their first term of office. The foregoing considerations were unduly brushed aside by the ponencia in one fell swoop when it invalidated Republic Act No. 9355 and the exception embodied in Article 9 of the IRR with a strict and narrow interpretation of Section 461 of the Local Government Code.

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 MovantIntervenors1 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 certiorari 8 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 (P20,000,000.00) 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 Resolution12 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 Dinagats Urgent Omnibus Motion, which our esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagats 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 Dinagats 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 Courts 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 movantsintervenors 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 movantsintervenors 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 movantsintervenors 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, were 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 thats 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 were 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 dont have the time nor the energy anymore to do that because its 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, thats correct, but on the assumption that the province is able to do it without being a burden to the national government. Thats the assumption.

HON. LAGUDA. Thats why were 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 shall continue to exist and operate as such. Existing districts organized pursuant to presidential issuances or orders and which have their respective set of elective officials holding office at the time of the effectivity of shall henceforth be considered regular municipalities.

this Code municipal executive municipal this Code

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 (P2,500,000.00), 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 population, and income of the original LGU or LGUs said creation to less than the prescribed minimum All expenses incidental to the creation shall be 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 (P20,000,000.00) 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, the land area, at the time of requirements. borne by the

(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 nonrecurring 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 (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 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 (P20,000,000.00) 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 (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 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 LGCIRR26 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 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. give time to Congressman

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 wont 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, thats 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, lets say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I dont 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, thats all what I can say, Mr. Senator, and I dont believe that it is not, because its 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 dont 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, its 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?" Its not 20 or 30 kilometers from the capital town; its 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 dont have the population because thats 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 dont 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, Ill 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. Its 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 youre 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 thats 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 id[i]osyncracies eh, we cannot make a generalization. sariling

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. Theres 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, its 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 Committee meeting clearly show the Bicameral Conference 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 53332 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 LGCIRR. 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 ofP82,696,433.23 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 P20,000,000.00 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 Dinagats 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 Elections35 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 others 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. DISSENTING OPINION CARPIO, J.: I join Justice Diosdado M. Peralta and Justice Arturo D. Brion in their dissents. I file this separate dissenting opinion because the majoritys ruling today, legitimizing the creation of a province in blatant violation of the Constitution and the Local Government Code, opens the floodgates to the proliferation of pygmy provinces and legislative districts, mangling sacred and fundamental principles governing our democratic way of life and exacerbating the scourge of local dynastic politics. First. The Dinagat Islands province simply does not meet the criteria for the creation of a province. To implement the Constitution and for reasons of political practicality and economic

viability, Section 461 of the Local Government Code bars the creation of provinces unless two of three minimum requirements are met. Section 461 of the Code provides: 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 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. (Emphasis supplied) Section 461 requires a province to meet the minimum income requirement and either the minimum land area or minimum population requirement. In short, two of the three minimum requirements must be satisfied, with the minimum income requirement one of the two. The Dinagat Islands province, whose income at the time of its creation in 2006 was P82,696,433.22, satisfies only the minimum income requirement. The Dinagat Islands province does not meet either the minimum land area requirement or the minimum population requirement. Indisputably, Dinagat Islands cannot qualify as a province under Section 461 of the Local Government Code, the law that governs the creation of provinces. Based on the 2000 census, Dinagat Islands population stood only at 106,951, less than half of the statutory minimum of 250,000. In

the census conducted seven years later in 2007, one year after its creation, its population grew by only 13,862, reaching 120,813, still less than half of the minimum population required. The province does not fare any better in land area, with its main island, one subisland and around 47 islets covering only 802.12 square kilometers, less than half of the 2,000 square kilometers minimum land area required. The Local Government Code contains no exception to the income and population or land area requirements in creating provinces. What the Code relaxed was the contiguity rule for provinces consisting of "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 minimum land area of 2,000 square kilometers in the Code for the creation of a province was never changed, andno exception was ever created by law. Hence, the exception created in the implementing rule1 of the Local Government Code, exempting provinces "composed of one (1) or more islands" from the minimum land area requirement, is void for being ultra vires, granting a statutory exception that the Local Government Code clearly withheld. The implementing rule, being a mere administrative regulation to implement the Local Government Code, cannot amend the Code but must conform to the Code. Only Congress, and not any other body, is constitutionally empowered to create, through amendatory legislation, exceptions to the land area requirement in Section 461 of the Code. The majority argues that since the exception of island provinces from the minimum land area requirement was inserted in the implementing rules by the congressional Oversight Committee, the Court should extend great weight to this "legislative construction" of the Code. This is gross error. First, in Macalintal v. Comelec,2 we ruled that a congressional oversight committee has no power to approve or disapprove the implementing rules of laws because the implementation of laws is purely an executive function. The intrusion of the congressional Oversight Committee in the drafting of implementing rules is a violation of the separation of powers enshrined in the Constitution. This Court cannot allow such intrusion without violating the Constitution. Second, Congress has no power to construe the law. Only the courts are vested with the power to construe the law. Congress may provide in the law itself a definition of terms but it cannot define or construe the law through its Oversight Committee after it has enacted the law because such power belongs to the courts.

It is not difficult to see why Congress allowed an exception to the land area requirement in the creation of municipalities3 and cities4 but withheld it for provinces. The province, as the largest political and corporate subdivision of local governance in this country, serves as the geographic base from which municipalities, cities and even another province will be carved, fostering local development. Todays majority ruling, allowing the creation of an island province irrespective of population and land area so long as it has P20 million annual income, wipes away the territorial and population tiering among provinces, cities and municipalities the Local Government Code has carefully structured, reducing provinces to the level of a rich municipality,5 unable to host otherwise qualified new smaller local government units for sheer lack of space. Despite the majoritys ingenious resort to "legislative construction" in the implementing rules to exempt Dinagat Islands from the minimum land area requirement, the majority cannot escape one glaring fact: Dinagat Islands province satisfies only the minimum income requirement under Section 461 of the Local Government Code. Even assuming that the minimum land area requirement does not apply to island provinces, an assumption that is devoid of any legal basis, Dinagat Islands still fail to meet the minimum population requirement.Under Section 461 of the Code, two of the three minimum requirements must be satisfied in the creation of a province, with the income requirement being one of the two minimum requirements. The majoritys ruling today creates the Dinagat Islands province despite the indisputable fact that it satisfies only one of the two necessary requirements prescribed in Section 461. The majoritys ruling clearly violates Section 461 of the Code, no question about it. Second. It is mandatory that a province must have a population of at least 250,000. The 1987 Constitution mandates that "each province[,] shall have at least one representative."6 In Sema v. Commission on Elections,7 we categorically ruled that "the power to create a province or city inherently involves the power to create a legislative district." Thus, when Congress creates a province it necessarily creates at the same time a legislative district. The province must comply with the minimum population of 250,000 because the Constitution mandates that 250,000 shall be the minimum population for the creation of legislative districts.8

The Constitution provides for proportional representation in the House of Representatives when it declares that "legislative districts [shall be] apportioned among provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants x x x ." This means that for every given number of inhabitants, "provinces, cities and the Metropolitan Manila area" will be entitled to one representative. In consonance with this constitutional rule on proportional representation and in compliance with the Equal Protection Clause, the minimum population for the creation of legislative districts in provinces and cities must be the same. Since the Constitution expressly provides that the minimum population of legislative districts in cities shall be 250,000,9 then it necessarily follows that the minimum population of legislative districts in provinces shall also be 250,000. Otherwise, there will be a blatant violation of two fundamental principles of our democratic system the constitutional requirement of proportional representation in the House of Representatives for "provinces, cities and the Metropolitan Manila area" and the "one person, one vote" rule rooted in the Equal Protection Clause. Moreover, to treat land area as an alternative to the minimum population requirement (based on the conjunctive "either" in Section 461) destroys the supremacy of the Constitution, making the statutory text prevail over the clear constitutional language mandating a minimum population through the requirement of proportional representation in the apportionment of all legislative districts. In short, in the creation of a province neither Congress nor the Executive can replace the minimum population requirement with a land area requirement because the creation of a province necessarily creates at the same time a legislative district, which under the Constitution must have a minimum population of 250,000. Because of the majoritys ruling today, the House of Representatives will now count among its members a representative of a "premium" district consisting, as of the 2007 census, of only 120,813 constituents, well below the minimum population of 250,000 his peers from the other regular districts represent. This malapportionment tolerates, on the one hand, vote undervaluation in overpopulated districts, and, on the other hand, vote overvaluation in underpopulated ones, in clear breach of the "one person, one vote" rule rooted in the Equal Protection Clause. To illustrate, the 120,813 inhabitants of Dinagat Islands province are entitled to send one representative to the House of Representatives. In contrast, a legislative district in Metro Manila

needs 250,000 inhabitants to send one representative to the House of Representatives. Thus, one vote in Dinagat Islands has the weight of more than two votes in Metro Manila for the purpose of representation in the House of Representatives. This is not what our "one person, one vote" representative democracy is all about. What special and compelling circumstances have the majority found that entitle the inhabitants of Dinagat Islands to such a privileged position? Do the inhabitants of Dinagat Islands have more than twice the IQ of inhabitants of Metro Manila? Do the inhabitants of Dinagat Islands pay more than twice the amount of taxes that inhabitants of Metro Manila pay? Are the inhabitants of Dinagat Islands the chosen people of God to lead this country to greatness? Have the Filipino people, in a plebiscite, agreed to confer on the inhabitants of Dinagat Islands such privileged position, which is the only constitutionally justifiable way to grant such privileged status? Indeed, the gross malapportionment this case presents is just as constitutionally damaging as that in Aquino v. Commission on Elections10 where the population of the reapportioned five legislative districts in Camarines Sur, based on relevant census, fluctuated from a high of 439,043 (Third District) to a low of 176,383 (First District). Aquino v. Commission on Elections, and now this Dinagat Islands province case, will mangle beyond recognition the bedrock constitutional principles of proportional representation in the House of Representatives, as well as the egalitarian rule of "one person, one vote" universally honored in all modern civilized societies and rooted in the Equal Protection Clause. With Aquino v. Commission on Elections, a legislative district in provinces can be created with no minimum population requirement. Thus, a municipality with a population of only 25,000 can have a legislative district. With this Dinagat Islands province case, a province, and necessarily a legislative district, can be created with a population of only 120,000 or even less. In fact, under both Aquino v. Commission on Electionsand this Dinagat Islands province case, there is no minimum population requirement whatsoever in the creation of legislative districts in provinces, and thus even a barangay with a population of 1,000 can be a legislative district. In sharp contrast, a legislative district in cities can only be created with a minimum population of 250,000 as expressly required in the Constitution. To repeat, the majority has thrown into the dustbin of history the bedrock democratic principles of proportional representation in the House of Representatives and the "one person, one vote" rule rooted in the Equal Protection

Clause both of which are enshrined in our Constitution and in our democratic way of life. Where is the majority of this Court bringing our representative democracy? Third. Quasi-malapportionment laws like RA 9355 are double-edged knives thrust at the heart of the anti-dynastic vision of the 1987 Constitution it fosters entrenchment of political dynasties and fuels feudalistic practices by assuring political dynasties easy access to public funds. Members of Congress are entitled to an equal share of pork barrel funds regardless of the size of their constituencies. Thus, each seat in the House of Representatives translates to a potent platform for congressmen to cultivate patronage by doling out development, livelihood and support projects using pork barrel funds allocated in annual budgets. For each new province created entailing at the same time the creation of a legislative district a pipeline to a huge pool of resources is opened, with the Congressman enjoying wide discretion on how and where he will dispense such legislative largesse. Under the majoritys ruling, not only land area but also population is immaterial in creating island provinces. This is an open invitation to ruling political clans strategically situated in this countrys thousands of islands to sponsor the creation of more underpopulated provinces within their political bailiwicks,11 enabling them to capture more pork barrel funds, thus tightening their grip on the levers of power. This inevitably fuels the feudal practices plaguing Philippine local politics by fortifying patron (congressman) ward (constituents) relations upon which dynastic politics thrive. All this at the expense of taxpayers, mostly residing in city legislative districts with minimum populations of 250,000, who surely would not want their taxes to be spent as pork barrel funds of political dynasties in underpopulated legislative districts in island provinces. The 1987 Constitution is not neutral on the scourge of dynastic politics, a phenomenon that concentrates political power and public resources within the control of few families whose members alternately hold elective offices, deftly skirting term limits. Its exclusionary effect on access to public service led the framers of the 1987 Constitution to mandate that the State "guarantee equal access to opportunities for public service" and that Congress "prohibit political dynasties x x x."12 To the Filipino peoples misfortune, Congress non-implementation of this constitutional directive is now aggravated by this Courts wantonly loose

translation of the Constitutions apportionment standard of proportional representation.13 Thus, instead of ensuring compliance with the Constitutions mandate prohibiting political dynasties, this Court has turned complicit to local politicians predilection for dynastic entrenchment. Fourth. Far from being dispensable components in the creation of local government units, population and land area not income are the pivotal factors in funding local government units. Under the Local Government Code, these components determine 75% of the share from the national taxes (Internal Revenue Allotment or IRA) each local government unit receives, the lifeblood of their operations, based on the following formula: 1. Population Fifty percent (50%) 2. Land Area Twenty-five percent (25%) 3. Equal sharing Twenty-five percent (25%).14 xxxx Thus, population, with a weight of 50%, ranks first in importance in determining the financial entitlement of local government units, followed by land area with a weight of 25%. By treating Dinagat Islands land area of 802.12 square kilometers as compliant with the 2,000 square kilometers minimum under Section 461, the majority effectively included in their land area computation the enclosed marine area or waters of Dinagat Islands. This disposition not only reverses, without cause, decades old jurisprudence,15 it also wreaks havoc on the national governments allocation of the internal revenue allotment to existing island provinces which would be justified in invoking todays ruling to clamor for increased revenue shares due to increased "land area." In short, other island provinces, like Romblon, Marinduque, Sulu, Tawi-Tawi and Palawan, can now claim their enclosed marine areas as part of their "land area" in computing their share of the IRA.16 On the part of landlocked provinces hosting large bodies of water, like Rizal, Laguna, Batangas, Cavite and Lanao del Sur, the situation is reversed. Finding themselves holding, but not surrounded by, water, the submerged territory, no matter how large, is excluded from the computation of their land area, thus proportionately lowering their share in the revenue allotment compared to their island counterparts.

Thus, in its zeal to legalize the creation of an obviously disqualified local government unit, the majority unwittingly creates classes of elite and disadvantaged provinces, using the most arbitrary factor of geographic accident as basis for classification. Even under the most benign equal protection analysis, this does not pass constitutional muster. Fifth. The Constitution and the Local Government Code are normative guides for courts to reasonably interpret and give expression to the will of the Filipino people as encoded in their provisions. Members of this Court go beyond the bounds of their sworn duties when they second guess the intent of the Constitutions framers and the peoples elected representatives, pretending to act as if they themselves have been accorded electoral mandate to amend statutes as they see fit. No amount of rhetoric singing paeans to the virtues of promoting local autonomy can hide the blatant judicial legislation the majority has succeeded in doing here today, to the detriment of the Constitutions requirements of proportional representation in the House of Representatives, equal protection under the law and the prohibition against political dynasties, not to mention the blatant violation of Section 461 of the Local Government Code. Accordingly, I vote to DENY the Motion to Recall Entry of Judgment, the Motion for Leave to Intervene and to File and Admit Intervenors Motion for Reconsideration of the Resolution dated 20 July 2010, and the Motion for Reconsideration of the Resolution dated 12 May 2010 filed by the intervenors. DISSENTING OPINION BRION, J.: I join the Dissents of Justices Antonio T. Carpio and Diosdado M. Peralta on the strict merits of the case on why, based on the merits, Republic Act No. 9355 (RA 9355), otherwise known as An Act Creating the Province of Dinagat Islands, should be declared unconstitutional. Additionally, I submit this Dissenting Opinion to express my objections in the strongest terms against the transgressions the Court committed in ruling on this case. The result, which is obvious to those who have been following the developments in this case and current Supreme Court rulings, is another flip-flop, made worse by the violations of the Courts own Internal Rules.1 This is not, of course, the Courts first flip-flop in recent memory; we did a couple of remarkable somersaults in our rulings in the case of League of

Cities of the Philippines, et al. v. Comelec.2 This Dissent is written in the hope that the Courts violation of its own rules in this case will be the last, and that the Court will re-think its disposition of this case. The Court rendered its Decision in this case on February 10, 2010, declaring RA 9355 unconstitutional. The Office of the Solicitor General (OSG), in behalf of the respondents, and respondent Governor Geraldine Ecleo-Villaroman filed their separate Motions for Reconsideration. These were their first motions for reconsideration. On May 12, 2010, the Court denied these motions for lack of merit. On May 26 and 28, 2010, respondent Governor Ecleo-Villaroman and the OSG respectively filed their 2nd Motions for Reconsideration. The Court simply noted these motions without action as they are prohibited pleadings under Section 2, Rule 52 of the Rules of Court. This procedural rule states: Sec. 2. Second Motion for Reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. The Courts Decision of February 10, 2010 became final and executory, and Entry of Judgment was made by the Clerk of Court on May 18, 2010. At that point, the Decision of the Court should have been beyond recall. On June 18, 2010 (or a full month after entry of judgment), new parties, namely Congressman Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Vicente G. Castrence, Hon. Mamerto D. Galamida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol, filed a Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010. They prayed that they be allowed to intervene in the case since they were the newly elected officials of Surigao del Norte in the May 10, 2010 elections, who were in danger of losing their positions once the Court's February 10, 2010 decision, declaring R.A. No. 9355 unconstitutional, attained finality. Effectively, they took up the cause of the original respondent Province of Surigao del Norte then represented by former Governor Robert Ace Barbers. The Court denied the motion in its Resolution of July 20, 2010, pursuant to Section 2, Rule 19 of the Rules of Court which allows a motion for intervention only before the rendition of judgment by

the trial court. Applying this rule to an action originally filed with the Court, we ruled that a motion for intervention could only be filed before, and not after, the final judgment in the case. Respondent Governor Ecleo-Villaroman filed, on October 22, 2010, an Urgent Omnibus Motion (To Resolve Motion for Leave of Court to Admit 2nd Motion for Reconsideration and, to Set Aside Entry of Judgment). Thus, despite the Entry of Judgment, she sought the Courts ruling on her 2nd Motion for Reconsideration that had simply been Noted Without Action by the Court for being a prohibited pleading. The ploy to reopen the case and escape from the consequences of the final judgment was apparent from the move to set aside the Entry of Judgment. Effectively, she was moving for the third time to secure the review of the February 10, 2010 Decision that had been declared final, and to re-submit the case for another deliberation on the merits. Side by side with the original respondent, the would-be intervenors - despite the lack of personality to act on the case - filed on October 29, 2010 an Urgent Motion to Recall Entry of Judgment. Of course, this move was duly orchestrated with the respondents whose own motions were filed a week earlier. This was a motion the would-be intervenors had no personality to file since their proposed intervention, at that point, stood denied. The Court en banc deliberated on the case and by a vote of 9 in favor and 6 against, decided to lift the entry of judgment and allow the intervention of the new parties. By the same vote, it voted to completely reverse the Decision of February 10, 2010 and declare RA 9355, entitled An Act Creating the Province of Dinagat Islands, constitutional. In acting as it did, the Court did not hesitate, by a 9-6 vote, to disregard existing rules that the Court itself created. After this vote, the ponente modified the majority resolution in reaction to the original version of this Dissent. This time, the majority Resolution claimed that it was acting only on the would-be intervenors' Motion to Lift Entry of Judgment, not on the original respondents' motion to set aside judgment. The ploy apparently was to avoid the Dissent's position that the Court acted on a prohibited 2nd motion for reconsideration without the required vote. The Court, for reasons of its own, has chosen to live with the public fiction that 2nd motions for reconsideration are prohibited pleadings pursuant to Section 2, Rule 52 of the Rules of Court, cited

and quoted above. In actual practice, exceptions to this Rule are allowed and what governs is Section 3, Rule 15 of the Internal Rules of the Supreme Court which provides: Sec. 3. Second Motion for Reconsideration. The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration. [Emphases supplied.] In the present case, the Court simply noted without action respondent Governor Ecleo-Villaromans and the OSGs 2nd motions for reconsideration because they are prohibited pleadings. The Court thereafter declared its judgment final, and entry of judgment followed. Thus, when Governor Ecleo-Villaroman sought to lift the entry of judgment, her motion which sought to reopen the case for another review was effectively a third motion for reconsideration that should have been governed by Section 3, Rule 15 of the Internal Rules. With the modified position that the Court was acting on the movants-intervenors' motion to lift entry of judgment, the majority sought to avoid the restrictive rule on 2nd motions for reconsideration. How the Court acted on the respondents and would-be intervenors' motions is interesting. a. Violation of the Rule on Reconsideration. By a 9-6 vote, the Court declared the entry of judgment lifted. In so doing, it completely disregarded its own rule that any 2nd motion for reconsideration can only be entertained through a vote of 2/3 of the actual membership, or of 10 members, of the Court. It likewise disregarded the rule that a second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration. It conveniently forgot, too, when it subsequently claimed that the motion it was considering was not by respondent Governor Ecleo but by the would-be intervenors, that what an original party could no longer do with respect to a final decision, would-be intervenors practically representing the same interests and who had not even been recognized by this Court cannot also do; otherwise, what

is directly prohibited is allowed through indirect means. Unbelievably, among the majority's supporting arguments to support their violation, was that (1) a motion to lift entry of final judgment is not a motion for reconsideration of the decision sought to be declared non-final; and that (2) no exact provision of the Internal Rules covers the lifting of an entered final judgment. b. Violation of the Rule on Finality of Judgments. Worse than the above transgression, the Court turned a blind eye to the finality of the judgment it had reached in the case. The judgment in a case becomes final by operation of law (after the lapse of fifteen [15] days from the parties receipt of the judgment) or upon the Courts declaration of the judgments finality. Entry of Judgment by the Clerk of Court follows the finality of a judgment, i.e., if no motion for reconsideration is filed with the Court within fifteen (15) days from the parties receipt of the judgment. As mentioned above, no second motion for reconsideration can be entertained once a judgment has become final. In this case, the Court disregarded its own rules and entertained a motion to lift the entry of judgment and to reopen the case. It was not an ordinary violation as the judgment lifted was already final. The respondent Governor's motion to lift entry of judgment was effectively a third motion for reconsideration (as its objective is to open the final decision for another consideration) and its consequences need no elaborate argument to be understood. For the would-be intervenors, it was a matter of putting the cart before the horse a move to lift the entry of judgment even before the would-be intervenors had their personality recognized by the Court. The principle of immutability of a final judgment stands as one of the pillars supporting a strong, credible and effective court. To quote what this Court has repeatedly stated on this principle: "It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to correct an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must become final and executory on some definite date fixed by law. [x x

x ], the Supreme Court reiterated that the doctrine of immutability of judgment is adhered to by necessity notwithstanding occasional errors that may result thereby, since litigations must somehow come to an end for otherwise, it would "be even more intolerable than the wrong and injustice it is designed to protect." 3 [Emphases supplied.] This same principle, incidentally, is what we teach students in law schools as a basic bedrock principle in the administration of justice. This is the same principle, too, that is often asked in the bar examinations. Unfortunately, this is the same principle that the Court violated, through a 9-6 vote, when it decided to lift its Entry of Judgment and to entertain the reopening of the final judgment in the case for renewed consideration. This, indeed, is a most unusual move. Did the Majority truly fail to appreciate that the lifting of the entry of judgment is no different in effect from entertaining a motion for reconsideration, and can be made, if at all, by the actual parties, not by would-be intervenors? If a 2nd motion for reconsideration is prohibited and requires a 2/3 vote, can a vote that removes the character of finality from a judgment be any less? c. Violation of the Rule on Intervention. The Court disregarded as well the rule on interventions.4 The motion for intervention was initially denied since the Courts decision was already final, and intervention could no longer be allowed. To go around this rule, the would-be intervenors, without first successfully securing leave to intervene, instead filed its own motion to lift entry of judgment the same 2nd motion from the original respondents that the Court previously simply noted without action. The Court granted the motion to lift judgment by a 9-6 vote, under the fiction that it was an intervening party, not the barred original respondents, who had asked for it. To complete this blow-by-blow account, the respondents legal tactician used the ploy of first reopening the case (initially through the original respondents, and subsequently solely through the would-be intervenors), and thereafter moved to allow intervention since the original respondents had by then exhausted their arguments for the constitutionality of RA 9355. On two previous attempts, the original respondents had failed. To get around the insurmountable block posed by the rule on 2nd motions for reconsideration, they fell back on their modified Resolution with the position that another party the would-be intervenors wanted to lift the entry of judgment. Once the entry of judgment was lifted and intervention was allowed, it was an easy step to reopen the

arguments, add to what the original respondents presented, and submit the case for a ruling on the merits. The same magic numbers of course prevailed all throughout: 9 to 6. In this manner, the original and final ruling of the Court, in what is commonly known as the "Dinagat case" was reversed. Unlike the case of Lazarus who rose from the dead through a miracle, Dinagat resurrected because the Court disregarded its own rules and established jurisprudential principles. Of course, it can similarly be called a miracle as no reversal could have taken place if just one of the series of transgressions pointed out did not take place. How such resurrection can happen in the Supreme Court is a continuing source of wonder! DISSENTING OPINION PERALTA, J.: With due respect to the ponente, I register my dissent. On February 10, 2010, the Court rendered a Decision in the instant case, the dispositive portion of which 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 Office of the Solicitor General (OSG) filed a motion for reconsideration in behalf of public respondents, and respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, also filed a separate motion for reconsideration of the Decision dated February 10, 2010. On May 12, 2010, the Court issued a Resolution denying the motions for reconsideration of the OSG and respondent Governor Geraldine Ecleo- Villaroman, representing the New Province of Dinagat Islands, for lack of merit. A copy of the Resolution dated May 12, 2010 was received by the OSG on May 13, 2010, while respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, received a copy of the said Resolution on May 14, 2010.

The Decision dated February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment1 issued by the Clerk of Court. On May 26, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed a Motion for Leave to Admit Motion for Reconsideration (of the Resolution dated May 12, 2010) and the said Motion for Reconsideration, while on May 28, 2010, the OSG filed a Motion for Leave to File the Attached 2nd Motion for Reconsideration (of the Resolution dated May 12, 2010) and the aforesaid Motion for Reconsideration. On June 29, 2010, the Court noted without action the foregoing motions of respondents, as the said pleadings were considered second motions for reconsideration of the Decision, which shall not be entertained by the Court, in accordance with Section 2, Rule 52 of the Rules of Court, thus: SEC. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. On June 18, 2010, movants-intervenors 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 filed a Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010. Movants-intervenors claimed that they have legal interest in this case as they are the duly elected officials2 of Surigao del Norte in the May 10, 2010 elections, and their positions will be affected by the nullification of the election results in the event that the Resolution dated May 12, 2010 in this case is not reversed and set aside. On March 9, 2010, the Commission on Elections issued Resolution No. 8790,3 the pertinent portion of which reads: xxxx 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 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. xxxx 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. Since movants-intervenors elective positions would be adversely affected if the Resolution dated May 12, 2010 would not be reversed, they prayed that they be allowed to intervene in this case and to file their Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010, and that their motion for reconsideration be admitted by the Court. In a Resolution dated July 20, 2010, 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. The Court held that, fundamentally, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court.4 Under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. The Court ruled that since this case originated from an original action filed before this Court, the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon.5 It should be noted that this case was decided on February 10, 2010, and the motions for reconsideration of the Decision were denied in the Resolution dated May 12, 2010. The Decision dated February 10, 2010 became final and executory on May 18, 2010. Movantsintervenors Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 was filed only on June 18, 2010, clearly after the

Decision dated February 10, 2010 had became final and executory; hence, the said motion was correctly denied. The ponente submits that the Court should grant movantsintervenors motion for reconsideration of the July 20, 2010 Resolution, in full agreement with their position that their interest in this case arose only after they were elected to their respective positions during the May 10, 2010 elections. As stated by the ponente, in their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three main arguments: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of R.A. No. 7160 (the Local Government Code of 1991); (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. On the merits of the motion for intervention, the ponente urges the Court to take a hard and intent look at the first and second arguments raised by movants-intervenors. Movants-intervenors contended that R.A. No. 9355 is equivalent to the passage of an amendatory law to the Local Government Code, as instructed in the case of League of Cities of the Phils., et al. v. COMELEC, et al.:6 Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)

Defining legislative power, movants-intervenors cited Yakazi Torres Manufacturing, Inc. v. Court of Appeals,7 thus: The legislative power has been described generally as the power to make, alter, and repeal laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the legislature to prescribe general rules for the government of society. (Emphasis and [u]nderscoring supplied [by movants-intervenors].) In view of the foregoing, movants-intervenors argued that the Local Government Code is susceptible to all legislative processes, including amendments, repeals or modifications. They asserted that there is no impediment for another statute, including R.A. No. 9355, to amend or modify the Local Government Code as regards the criteria established for the creation of a province. They noted that R.A. No 9355 relied on Article 9 (paragraph 2) of the Rules and Regulations Implementing the Local Government Code of 1991, particularly the provision that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Movants-intervenors asserted that the said provision should be deemed incorporated in R.A. No. 9355; hence, they purported that the land area requirement in the Local Government Code was modified by R.A. No. 9355. They contended that "R.A. No. 9355, with the incorporated Article 9 (2) of the IRR of the Local Government Code, became part of the Local Government Code." Movants-intervenors argument is unmeritorious. As cited in Yakazi Torres Manufacturing, Inc. v. Court of Appeals, legislative power is the power to make, alter, and repeal laws; thus, the authority to amend, change, or modify a law is part of such legislative power. However, in this case, R.A. No. 9355, is not a law amending the Local Government Code on the criteria for the creation of a province. Instead, R.A. No. 9355 is a statute creating the Province of Dinagat Islands; hence, subject to the constitutional provision on the creation of a province. The constitutional provision on the creation of a province found 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.8 Pursuant to the Constitution, the Local Government Code of 1991, in Section 461 thereof, prescribed the criteria for the creation of a

province.9 Hence, R.A. No. 9355 did not amend the Local Government Code, but was subject to the criteria contained in Section 461 of the Local Government Code in creating the Province of Dinagat Islands. Moreover, Section 6 of the Local Government Code provides: SEC. 6. Authority to Create Local Government Units. A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. (Emphasis and underscoring supplied.) Thus, even the Local Government Code clearly provides that Congress may enact a law creating a local government unit, which in this case involves the creation of a province, but such creation is subject to such limitations and requirements prescribed in the Local Government Code. Hence, the creation of the Province of Dinagat Islands is subject to the requirements contained in Section 461 of the Local Government Code. Since R.A. No. 9355 failed to comply with the land area or population requirement in the creation of the province, it was declared unconstitutional in the Decision dated February 10, 2010. League of Cities of the Philippines v. Commission on Elections, which was cited by movants-intervenors, does not apply to this case. The Court held in its Resolution dated May 12, 2010, thus: 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 Sec. 450 of the Local Government Code, to exempt therein respondents local government units (LGUs) from the P100 million income requirement since the said LGUs had pending cityhood bills long before the enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision exempting the municipality covered from the P100 million income requirement. In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply with either the population or territorial requirement for the creation of a province under Section 461 of the Local Government Code.

Contrary to the contention of the movants-intervenors, Article 9 (2) of the Rules and Regulations Implementing the Local Government Code, which exempts a proposed province from the land area requirement if it is composed of one or more islands, cannot be deemed incorporated in R.A. No. 9355, because rules and regulations cannot go beyond the terms and provisions of the basic law. Thus, in the Decision dated February 10, 2010, the Court held that Article 9 (2) of the Implementing Rules of the Local Government Code is null and void, because the exemption is not found in Section 461 of the Local Government Code. 10 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.11 Next, movants-intervenors stated that assuming that Section 461 of the Local Government Code was not amended by R.A. No. 9355, they still sought reconsideration of the Resolution dated May 12, 2010, as they adopted the interpretation of the ponente and Justice Perez of Section 461 of the Local Government Code in their respective dissenting opinions. They asserted that the correct interpretation of Section 461 of the Local Government Code is that of Justice Nachura. It must be stressed that the movants-intervenors assertion was already answered in the Resolution dated May 12, 2010, denying the motions for reconsideration of the OSG and Governor Geraldine Ecleo-Villaroman, representing the Province of Dinagat Islands. The Court, in the said Resolution, answered the same contention, thus: The movants now argue that the correct interpretation of Sec. 461 of the Local Government Code is the one stated in the Dissenting Opinion of Associate Justice Antonio 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-squarekilometer land area criterion in Sec. 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 (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. 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[.] 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 island 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. km. 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). 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. 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; neither may it engraft into the law qualifications not contemplated, nor construe its provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so as to relax non-compliance therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application.1avvphi1

Further, movants-intervenors pointed out that pursuant to R.A. No. 9355, the Province of Dinagat Islands has been organized and is functioning as a province, which cannot just be ignored. Thus, a more realistic and pragmatic view should have been adopted by the Court in its Resolution dated May 12, 2010 following the Operative Fact Doctrine, citing Planters Products, Inc. v. Fertiphil Corporation.12 In Planters Products, Inc. v. Fertiphil Corporation, petitioner Planters Products, Inc. (PPI) and private respondent Fertiphil were private corporations, which were both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals. On June 3, 1985, then President Ferdinand Marcos issued LOI No. 1465, which provides: 3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. (Underscoring supplied) Pursuant to the LOI, Fertiphil paid P10.00 for every bag of fertilizer it sold in the domestic market to the Fertilizer and Pesticide Authority (FPA), which amount FPA remitted to the depositary bank of PPI. Fertiphil paid FPAP6,689,144.00 from July 8, 1985 to January 24, 1986. After the 1986 EDSA Revolution, FPA voluntarily stopped the imposition of the P10.00 levy. Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the demand. Fertiphil filed a complaint for collection and damages against FPA and PPI with the Regional Trial Court (RTC) of Makati City. It questioned the constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial of due process of law. Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which used the proceeds to maintain its monopoly of the fertilizer industry. The RTC ruled in favor of Fertiphil, and ordered PPI to pay Fertiphil the sum of P6,698,144.00 with interest at 12% from the time of judicial demand; the sum of P100,000.00 as attorneys fees; and the cost of suit. Ruling that the imposition of the P10.00 levy was an exercise of the States inherent power of taxation, the RTC invalidated the levy for violating the basic principle that taxes can

only be levied for public purpose. On appeal, the Court of Appeals affirmed the RTC Decision, but deleted the award of attorneys fees. The Court upheld the decision of the Court of Appeals as LOI No. 1465 failed to comply with the public purpose requirement for tax laws. As regards the argument of PPI that Fertiphil cannot seek a refund based on the Operative Fact Doctrine, the Court held: The general rule is that an unconstitutional law is void; the doctrine of operative fact is inapplicable. PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional. We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised in the court a quo. PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law. At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides: ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always

be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that "every person who, through an act of performance by another comes into possession of something at the expense of the latter without just or legal ground shall return the same to him." We cannot allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil.13 In this case, the general rule applies that an unconstitutional law is void, and produces no legal effect. As stated in the decision above, the doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. The said doctrine recognizes that the actual existence of a statute prior to a determination of unconstitutionality is an operative fact, and may have consequences which cannot always be ignored. The doctrine was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy14 or would put in limbo the acts done by a municipality in reliance upon a law creating it in the case of Municipality of Malabang v. Benito.15 In Municipality of Malabang v. Benito, the Court ruled that Executive Order 386 creating the Municipality of Malabang is void, and respondent officials were permanently restrained from performing the duties and functions of their respective offices. Nevertheless, the Court stated there was no basis for respondent officials apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality, citing Chicot County Drainage District v. Baxter State Bank, thus:16

x x x The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.17 Therefore, based on the foregoing, any question on the validity of acts done before the invalidation of R.A. No. 9355 may be raised before the courts. Lastly, movants-intervenors contended that the inhabitants of the Province of Dinagat Islands have expressed their will, through their votes in a plebiscite, to be a province; hence, the Court should uphold the will of the people and uphold the validity of R.A. No. 9355. The contention does not persuade. The validity of R.A. No. 9355 creating the province of Dinagat Islands depends on its compliance with Section 10, Article X of the Constitution, which 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.18 Although the political units directly affected by the creation of the Province of Dinagat Islands approved the creation of the said province, R.A. No. 9355 failed to comply with the criteria for the creation of the province contained in Section 461 of the Local Government Code; hence, it was declared unconstitutional. As cited in the Comelec19 held: Resolution dated May 12, 2010, Tan v.

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. In view of the foregoing, the Court acted in accordance with its sound discretion in denying movants-intervenors Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 as the issues raised by them lacked merit or had already been resolved by the Court in its Decision dated February 10, 2010 and its Resolution dated May 12, 2010 denying respondents Motion for Reconsideration. Moreover, under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. Since this case originated from an original action filed before this Court, the Court properly ruled that the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon.20 Further, when movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 on June 18, 2010, the Decision of February 10, 2010 had already become final and executory on May 18, 2010. Aside from urging the Court to take a hard look on the first and second arguments raised by movants-intervenors, the ponente also wants the Court to consider his arguments for a reconsideration of the Decision in this case. The ponente states that the Court must bear in mind that the central policy considerations in the creation of local government

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

units are economic viability, efficient administration and capability to deliver basic services, and the criteria prescribed by the Local Government Code, i.e., income, population and land area, are all designed to accomplish these results. He adds that 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. The ponente calls the attention of the majority to the primordial criterion of economic viability in the creation of local government units, particularly of a province, as intended by the framers of R.A. No. 7160. The argument of the ponente has been discussed in his earlier Dissenting Opinion. It must be pointed out that from the congressional debates cited by the ponente, the framers of R.A. No. 7160 or the Local Government Code of 1991 finally came out with the end result, that is, Section 461 of R.A. No. 7160, which is the basis for the creation of a province. Section 461 of R.A. No. 7160 provides: 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. Thus, the requisites for the creation of a province, as provided by R.A. No. 7160, is an annual income of not less than P20 million and either a contiguous territory of at least two thousand

(2,000) square kilometers, as certified by the Lands Management Bureau, or a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. As the wordings of the law are plain and clear, compliance with the territorial requirement or population requirement cannot be made light of or disregarded. In this case, R.A. 9355 creating the Province of Dinagat Islands failed to comply with either the territorial or the population requirement of the Local Government Code. The Court stated in its Resolution dated May 12, 2010, thus: 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 Sec. 461 of the Local Government Code. No law has yet been passed amending Sec. 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, Art. X of the Constitution. Further, the ponente states that the provisions of both R.A. No 7160 and the Rules and Regulations Implementing the Local Government Code of 1991 (LGC-IRR) show that with respect to the creation of municipalities, component cities, and provinces, the three indicators of viability and projected capacity to provide services, i.e.,income, population, and land area, are provided for. He points out that the exemption from the land area requirement when the local government unit to be created consists of one (1) or more islands is expressly provided in Section 442 and Section 450 of R.A. No. 7160 and the LGC-IRR with respect to the creation of municipalities and component cities, respectively, but the exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of R.A. No. 7160, but is expressly stated under Article 9 (2) of the LGC-IRR. The ponente opines that there does not appear any rhyme or reason why this exemption should apply to cities and municipalities, but not to provinces. He stated that considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or groups of islands would form part of the land area of a newly-created province than in most cities or municipalities. According to the ponente, it is, therefore, logical to infer that the genuine legislative policy decision was expressed in

Section 442 (for municipalities) and Section 450 (for cities) of R.A. No. 7160, but was inadvertently omitted in Section 461 (for provinces). The ponente submits that 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 R.A. No. 7160 -- and reflect the true legislative intent; thus, it would be in order for the Court to uphold the validity of Article 9(2), LGC-IRR. The ponente also submits that Article 9(2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect. He contends that it is actually a detail expressly provided by the Oversight Committee to fill in the void, honest mistake and oversight committed by Congress in Section 461 of R.A. No. 7160, taking into account the spirit and intent of the law. The ponentes argument does not persuade. The Local Government Code took effect on January 1, 1992, so 19 years have lapsed since its enactment. If the Legislature committed the "congressional oversight in Section 461 of R.A. No. 7160" as alleged by Justice Nachura, it would have amended Section 461, which is a function of Congress. Substantial "oversights" in the basic law, particularly as alleged with respect to Section 461 of R.A. No. 7160, cannot be corrected in the implementing rules thereof, as it is settled rule that the implementing rules of the basic law cannot go beyond the scope of the basic law.1awphi1 Moreover, it should be pointed out that a province is "composed of a cluster of municipalities, or municipalities and component cities,"21 and, therefore, has a bigger land area than that of a municipality and a city, as provided by law. It is noted that the former Local Government Code (Batas Pambansa Blg. 337) did not provide for a required land area in the creation of a municipality and a city, but provided for a required land area in the creation of a province, which is 3,500 square kilometers, now lessened to 2,000 square kilometers in the present Local Government Code. If only the income matters in the creation of a province, then there would be no need for the distinctions in the population and land area requirements provided for a municipality, city and province in the present Local Government Code. It may be stated that unlike a municipality and a city, the territorial requirement of a province contained in Section 46122 of the Local Government Code follows the general rule in Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the same Code, thus:

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).23 Moreover, the argument that Article 9(2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect, citing the case of Galarosa v. Valencia,24 has already been ruled upon in the Decision dated February 10, 2010, thus: Further, citing Galarosa v. Valencia, 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 theSangguniang 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 Section 146 of Batas Pambansa Blg. 337, the former Local Government Code.

Section 494 of the Local Government Code of 1991 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 Article 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Sections 491 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 theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of Section 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Article 210, Rule XXIX. 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 Section 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 thebarangays 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 laws four corners. If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. 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, 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 Section 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 Article 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 is, therefore, null and void. The ponente also stated that it may be well to remember basic policy considerations underpinning the principle of local autonomy, and cited Section 2, R.A. No 7160, which 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. Indeed, the policy of the State is 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." However, it must stressed that in the creation of the territorial and political subdivisions of the State, the requirements provided by the Local Government Code must also be complied with, which R.A. No. 9355 failed to do.

Further, the ponente states that consistent with the declared policy to provide local government units local autonomy, he submits that the territory, contiguity and minimum land area requirements for prospective local government units should be construed liberally in order to achieve the desired results. He adds that this liberal interpretation is more appropriate, taking into account the rules on construction of the LGC, viz: SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply: xxxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; The ponente seeks for a liberal interpretation as regards the territorial requirement in the creation of a province based on the rules of interpretation of the general welfare provisions of the Local Government Code. General welfare is clarified in Section 16 of the Local Government Code, thus: Sec. 16. General Welfare.Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The Local Government Code provides that it is "[t]he general welfare provisions in this Code which shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community." Nowhere is it stated therein that the provisions for the creation of a local government unit, the province in particular, should be liberally interpreted. Moreover, since the criteria for the creation of a province under the Local Government

Code are clear, there is no room for interpretation, but only application. To reiterate, the constitutional basis for the creation of a province is laid down in Section 10, Article X of the Constitution, which provides that no province 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. The criteria for the creation of a province are found in Section 461 of the Local Government Code. Moreover, Section 6 of the Local Government Code provides that "[a] local government unit may be created xxx by law enacted by congress in the case of a province xxx subject to such limitations and requirements prescribed in this Code." Based on the criteria for the creation of a province provided for in Section 461 of the Local Government, the Court found that R.A. No. 9355 creating the Province of Dinagat Islands failed to comply with the population or territorial requirement; hence, R.A. No. 9355 was declared unconstitutional. The Decision in this case was promulgated on February 10, 2010. The motions for reconsideration of the Decision was denied on May 12, 2010. The Decision of February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment25 issued by the Clerk of Court. Movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 201 only on June 18, 2010, or after the resolution of the case and one month after the Decision in this case already became final and executory. Hence, the Court properly denied the said motion. The ponente contends that there is an imperative to grant the Urgent Motion to Recall Entry of Judgment filed on October 29, 2010 by movants-intervenors for the simple reason that the Entry of Judgment was prematurely issued on October 5, 2010 in view of the pendency of the movants-intervenors motion for reconsideration of the July 20, 2010 Resolution, which was filed on September 7, 2010. I cannot agree with such contention. Although Entry of Judgment was made on October 5, 2010, it must be borne in mind that the Decision in this case became final and executory on May 18, 2010, as evidenced by the Entry of Judgment 26 issued by the Clerk of Court. If the Court follows Section 2, Rule 36 of the Rules of Court,

the date of finality of the judgment is deemed to be the date of its entry, thus: Sec. 2. Entry of judgments and final orders.If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment of final order has become final and executory. The amendment in Section 2 above makes finality and entry simultaneous by operation of law, and eliminates the confusion and guesswork whenever the parties could not have access, for one reason or another, to the Book of Entries of Judgments.27 It also avoids the usual problem where the physical act of writing out the entry is delayed by neglect or sloth.28 In addition, the Court properly denied on July 20, 2010 the movants-intervenors Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010, since it was filed after the resolution of the case and after the Decision in this case had become final and executory on May 18, 2010. With the denial of the Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010, the movants-intervenors did not have legal standing to intervene; hence, their motion for reconsideration of the July 20, 2010 Resolution has no bearing on the validity of the Entry of Judgment that was recorded in the Book of Entries of Judgments on October 5, 2010. Therefore, the Entry of Judgment cannot be recalled on the ground of pendency of the movants-intervenors motion for reconsideration of the July 20, 2010 Resolution. Since movants-intervenors Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 was denied in the Resolution dated July 20, 2010, the motion for reconsideration of the July 20, 2010 Resolution filed on September 7, 2010 by movants-intervenors was recommended to also be denied, but has yet to be acted on by the Court. Further, on October 22, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed an Urgent Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and, to set aside Entry of

Judgment). Respondent admitted that it filed the Motion for Leave of Court to Admit Second Motion for Reconsideration on May 26, 2010, twelve (12) days after receipt of the Resolution dated May 12, 2010 denying respondents motion for reconsideration. It should be pointed out that the Court has acted on respondent New Province of Dinagat Islands Motion for Leave of Court to Admit Second Motion for Reconsideration and the aforesaid Motion for Reconsideration, which were filed on May 26, 2010 (after the Decision had become final and executory on May 18, 2010), in the Courts Resolution dated June 26, 2010. Treated as a second motion for reconsideration of the Decision, which is disallowed, the Court resolved to note without action the said motions in view of the Resolution dated May 12, 2010 denying the motions for reconsideration of the February 10, 2010 Decision. Section 2, Rule 52 of the Rules of Court states: SEC. 2. Second motion for reconsideration.No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. As the decision in this case became final and executory on May 18, 2010, the decision is unalterable.1avvphi1 In Gomez v. Correa,29 the Court held: It is settled that when a final judgment is executory, it becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest Court of the land. The doctrine is founded on considerations of public policy and sound practice that, at the risk of occasional errors, judgments must become final at some definite point in time. The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries in which case there is no prejudice to any party, and where the judgment is void. To stress, the motion for reconsideration filed by movantsintervenors on the denial of the motion for internvention should have been denied since to grant the same would be tantamount to reopening a case which is already final. Worse, movantsintervenors are not even original parties to the present case and therefore are not in a position to file a motion to recall a judgment which is already final and executory.

In view of the foregoing, I maintain that the movants-intervenors Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010, which was filed only on June 18, 2010 or after resolution of the case and after the Decision of February 10, 2010 had become final and executory on May 18, 2010, was properly denied in the Resolution dated July 20, 2010. Consequently, I maintain my stand that movants-intervenors Motion for Reconsideration of the Resolution dated July 20, 2010, which motion was filed on September 7, 2010, be denied for lack of merit. Further, it is recommended that movants-intervenors Urgent Motion to Recall Entry of Judgment filed on October 29, 2010, and the Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and to set aside Entry of Judgment) filed on October 22, 2010 by respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, be likewise denied for lack of merit. CONCURRING OPINION DEL CASTILLO, J.: Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. Justice Oliver Wendell Holmes Northern Securities Co. v. United States
1

identified factors not previously considered by this Court, which, in my view, warrant a reversal of our previous rulings. The case before us concerns the proper interpretation of Section 461 of Republic Act (RA) No. 7160, also known as the Local Government Code (LGC), which prescribes the criteria for the creation of a province as follows: 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.3 (Underscoring supplied) To implement the provisions of the LGC, the Oversight Committee (created pursuant to Sec. 533 of the LGC) formulated the Implementing Rules and Regulations to carry out the provisions of the law. Article 9 of said Rules and Regulations provides: 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: (i) 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 the DOF. The average annual income shall include the income

On the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itself. Chief Justice John Marshall United States v. Fisher2 Considering the circumstances which supervened after the promulgation of the Decision on February 10, 2010 and Resolution dated May 12, 2010, I find myself reconsidering my previous position. Mr. Justice Antonio Eduardo B. Nachura has himself

accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and (ii) Population or land area Population 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. Since our May 12, 2010 ruling (which denied respondents respective Motions for Reconsideration), the Office of the Solicitor General (representing the Republic of the Philippines) and Gov. Geraldine Ecleo Villaroman (representing the new Province of the Dinagat Islands), each sought leave to file a Second Motion for Reconsideration on May 27, 2010 and May 26, 2010, respectively, which motions were noted without action. The winning candidates for provincial and congressional seats in Surigao del Norte also sought to intervene in this case; however, their motion for intervention was denied on July 20, 2010. Subsequent to the Motions for Reconsideration, Justice Nachura has taken pains to compare the requisites for the creation of the different local government units (LGUs) in order to highlight what, in my view, is a glaring inconsistency in the provisions of the law. To summarize: LGU Barangay Land Area Requirement No minimum land area requirement. Rather, the barangay must be created out of a contiguous territory with a population of at least two thousand (2,000) inhabitants [Sec. 386(a), LGC] Province

income requirement of at least Two Million Five Hun Thousand Pesos (PhP2,500,000.00) in average an income for the last 2 consecutive years AND the popula requirement of at least Twenty Five Thousand (25, inhabitants. [Sec. 442(a), LGC]

The requirement on land area shall not apply where municipality proposed to be created is composed of on or more islands. The territory need not be contiguous comprises two (2) or more islands. [Sec. 442(b), LGC] City

Contiguous territory of at least one hundred (100) sq kilometers

Note a city must have an average annual income least Twenty Million Pesos (PhP20,000,000.00) for the la consecutive years AND comply with either the land requirement OR have a population of at least one hun fifty thousand (150,000) inhabitants. [Sec. 450(a), LGC]

The requirement on land area shall not apply where the proposed to be created is composed of one (1) or m islands. The territory need not be contiguous if it comp two (2) or more islands. [Sec 450(b), LGC]

Contiguous territory of at least two thousand (2,000) sq kilometers.

Note a province must have an average annual incom at least Twenty Million Pesos (PhP20,000,000.00) comply with either the land area requirement OR ha population of at least two hundred fifty thousand (250, inhabitants. [Sec. 461(a), LGC]

The territory need not be contiguous if it comprises tw or more islands or is separated by a chartered city or c which do not contribute to the income of the province. 461(b), LGC]

Municipali ty

The territory need not be contiguous if it comprises two (2) As Justice Nachura points out, as regards the creation of barangays, or more islands. [Sec. 386(b), LGC] land area is not included as a requirement. However, a minimum land area is provided for the creation of municipalities, cities, and Contiguous territory of at least fifty (50) square kilometers provinces. Furthermore, while an exemption4 is provided for municipalities and cities in cases where the LGU concerned is Note the land area requirement is IN ADDITION to the

composed of one or more islands, in stark contrast, no such exemption exists with respect to provinces. It is not difficult to see why no exemption is needed for barangays why exempt them from a requirement that does not even apply to them? In fact, the inclusion of the clause "[t]he territory need not be contiguous if it comprises two (2) or more islands" in Sec. 386(b) of the LGC appears to be surplusage. But I cannot see why there would be a difference in treatment between cities and municipalities, on one hand, and provinces, on the other. In fact, as Justice Nachura points out, this may lead to anomalous results. This leads me to conclude that Justice Nachuras interpretation is indeed correct that the legislature fully intended to exempt LGUs from the land area requirement in cases where the LGU concerned encompassed two or more islands, as provided in Section 442 (for municipalities) and Section 450 (for cities), but this legislative policy was not carried over to Section 461 (for provinces). Consequently, Article 9(2) of the LGCs Implementing Rules and Regulations were precisely enacted in order to correct the congressional oversight. Our esteemed colleague, Mr. Justice Diosdado M. Peralta, suggests that this interpretation is implausible because even if there were any such oversight, Congress had every opportunity in the last 19 years to correct its mistake. To this I would only observe that Congress has never, in the last 19 years, been faced with a situation where an amendment to Section 461 of the LGC was necessary or desirable, and no case concerning the land area requirement for provinces has ever been brought before this Court since the LGCs enactment.5 The only case that has mentioned the land area requirement for provinces, Tan v. Commission on Elections,6 (regarding the invalidation of Batas Pambansa Bilang 885 which created the province of Negros Del Norte) dealt with the matter only tangentially, at best.7 Justice Peralta also opines that there is no need to search for the legislative intent, since the language of the law is plain, clear, and unambiguous. I would submit, however, that it is equally true that the statute must be read as a whole, that its clauses and phrases are not detached and isolated expressions, but that each and every part must be considered in order to ascertain its meaning.8 Therefore, the statute, read as a whole, in the light of its legislative history, cannot be said to preclude the interpretation placed on it by the majority. But in interpreting a statute [such as the Local Government Code], we cannot take one sentence, one section, or

even the entire statute alone and say that it has a "plain meaning" as if there were an objective formula in the few words simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of its provisions and reading them in the context of the legal fabric to which they are to be applied. An interpretation that creates an admittedly anomalous result is not salved by the majority's apologia that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is whether the statute read as a whole was intended by Congress to create such results. The law is not an isolated bundle of capricious and inconsistent commands by a legislature presumed to react mindlessly.9 It is also relevant that the Senate and the House of Representatives, represented by the Office of the Solicitor General, have asserted that Congress intended that provinces composed of one or more islands should be exempted from the 2,000 sq. km. land area requirement. Surely, the legislatures will in this case should be given deference, as a co-equal branch of government operating within its area of constitutional authority. I also cannot help but note that the Dinagat Islands is not the first small island-province which has been separated from a larger province through legislative imprimatur. The Court may take judicial notice of the fact that the island-provinces of Batanes (previously annexed to Cagayan),10 Camiguin (previously a subprovince of Misamis Oriental),11 Siquijor (previously a sub-province of Negros Oriental),12 Biliran (previously a sub-province of Leyte),13 Guimaras (previously a sub-province of Iloilo),14 and Marinduque (previously annexed to Tayabas)15also have land areas of well below 1,000 square kilometers each. To be clear, I am not making an equal protection argument, since none of these provinces were created under the auspices of the LGC. I only point this out to show that Congress, in drafting the LGC, was cognizant of the special circumstances surrounding the creation of island-provinces, and evidently intended that economic development be a more significant consideration than size. The Congressional deliberations bear this out: CHAIRMAN LINA:

Will you look at the case of how many municip Batanes province?

CHAIRMAN ALFELOR: CHAIRMAN LINA: CHAIRMAN ALFELOR: CHAIRMAN LINA: CHAIRMAN ALFELOR: CHAIRMAN LINA: CHAIRMAN ALFELOR: CHAIRMAN LINA: CHAIRMAN ALFELOR:

Batanes is only six.

Government Code? Growth. To devolve powers community to have its own idea how they will stimu respective areas.

Six town. Siquijor?

So in every geographical condition, mayroong sarilin We cannot make a generalization.16 Though this Court certainly has the authority to override the legislative interpretation, I do not believe it is appropriate or necessary in this instance. Rather, we should acknowledge the "strong presumption that a legislature understands and correctly appreciates the needs of its own people [and] that its laws are directed to problems made manifest by experience."17 I do not propose that the Court overturn its settled precedent to the effect that Implementing Rules and Regulations cannot go beyond the terms of the statute. But under these limited circumstances where a reading of the entire law reveals inconsistencies which this Court must reconcile, where the legislature has informed the Court of its intentions in drafting the law, and where the legislative history of the LGC leads one to the inescapable conclusion that the primary consideration in the creation of provinces is actually administrative convenience, economic viability, and capacity for development - then it would be far more just to give effect to the will of the legislature in this case. In the words of Mr. Justice Isagani Cruz:

Siquijor. It is region?

Seven.

Seven. Anim.

Six also.

Six also.

It seems with a minimum number of towns?

CHAIRMAN LINA: CHAIRMAN ALFELOR:

But as even been The population of Siquijor is only 70 thousand, nothas also one aptly observed, we test a law by its results; and likewise, we 9. congressional district. But tumaas in 1982. Camiguin, that is Regionmay add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge Wala dito. Nagtataka nga ako ngayon. should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way Camiguin, Camiguin. as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. That is region? Camiguin has five municipalities, with a population of 63 Thus, we interpret and apply the law not independently of but in thousand. But we do not hold it against the province because maybe consonance with justice. Law and justice are inseparable, and we thats one stimulant where growth can grow, can start. The land area for must keep them so. To be sure, there are some laws that, while Camiguin is only 229 square kilometers. So if we hard fast on generally valid, may seem arbitrary when applied in a particular requirements of, we set a minimum for every province, palagay ko we case because of its peculiar circumstances. In such a situation, we just leave it to legislation, eh. Anyway, the Constitution is very clear that are not bound, because only of our nature and functions, to apply in case we would like to divide, we submit it to a plebiscite. Pabayaan them just the same, in slavish obedience to their language. What natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata we do instead is find a balance between the word and the will, that mahihirapan tayo eh. Because what is really the thrust of the Local justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the law maker's will. The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the letter but although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.18 For these reasons, I thus concur in the opinion of Justice Nachura. CONCURRING OPINION ABAD, J.: I fully concur in the resolution that Justice Antonio Eduardo Nachura wrote for the majority. I would want, however, to reply briefly to the somewhat harsh criticism hurled against the Court in connection with its action. The Court is accused of "flip-flopping" in this case as in the others before it, specifically the case of the sixteen municipalities that Congress converted into cities. Since the Court is a collegial body, the implication is that its members or the majority collectively flipflopped in their decisions. But, as I said in my concurring opinion in the Courts April 12, 2011 resolution in the League of Cities case,1 the charge is unfair, as it is baseless. The Court is not a living person whose decisions and actions are ruled by the whims of one mind. As a collegial body, the Court acts by consensus among its fifteen members.

In the League of Cities,2 neither all the Justices nor most of them did a somersault as implicitly suggested. Congress passed a number of laws converting sixteen municipalities into cities. The League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities involved did not meet the P100 million minimum income requirement of the Local Government Code. For their part, the municipalities countered that their laws constituted valid legislative amendments of such requirement. The Court originally voted in the case on November 18, 2008. A majority of six Justices voted to annul the laws, five members dissented, and four took no part (6-5-4). The lead of those who voted to annul the laws firmed up with an increase of 2 votes when the Court took up the motion for reconsideration of the sixteen municipalities on March 31, 2009. The vote was 7-5-2. But when on April 28, 2009 the Court acted on the sixteen municipalities second motion for reconsideration, the vote resulted in a tie, 6-6-3. The Court was divided in its interpretation of this 6-6 result. One group argued that the failure of the minority to muster a majority vote had the effect of maintaining the Courts last ruling. Some argued, however, that since the Constitution required a majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in favor of upholding the constitutionality of the laws of the sixteen municipalities, 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the laws that converted the sixteen municipalities into cities. But when the Court voted on the motion for reconsideration of the losing League of Cities on August 24, 2010, the majority shifted anew on a vote of 7-6-2. The sixteen municipalities filed a motion for reconsideration of the new decision and voting took place on February 15, 2011, resulting in a vote of 7-6-2 in favor of again upholding the constitutionality of the laws of the sixteen municipalities. To repeat what I said in my concurring opinion in the League of Cities,3 those who say that the Court, acting through its members, flipped-flopped in the League of Cities case should consider the following: One. The Justices did not on each occasion simply decide to change their minds. There were pending motions for reconsideration in the

case and the Justices had a duty to vote on them on the dates the matters came up for decision. The Court is no orchestra with its members playing one tune under the baton of a maestro. They bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that filters out blind or dictated conformity. Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty stood by their original positions. They never reconsidered their views. Only three did so and not on the same occasion, showing no wholesale change of votes at any time. Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of the twenty-three Justices flipped-flopped. Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. None of them flipped-flopped since the three never changed their votes afterwards. Notably, no one can dispute the right of a judge, acting on a motion for reconsideration that the losing party files, to change his mind regarding the case. The rules are cognizant of the fact that human judges could err and that it would merely be fair and right for them to correct their perceived errors upon a motion for reconsideration. Even God, who had decided to destroy the Israelites for worshipping a golden calf, reconsidered after Moses stood in the gap for them.4 Five. Evidently, the voting in the League of Cities is not a case of massive flip-flopping by the Justices of the Court. Rather, it is a case of tiny shifts in the votes, occasioned by the consistently slender margin that one view held over the other. This reflected the nearly even soundness of the opposing advocacies of the contending sides. Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an equal number. It is such that the resulting change in the combinations of minds produced multiple shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views of their predecessors.

Indeed, preordained conformity is anathema to a democratic system. In this Dinagat Islands case the vote changed when, acting on the intervention of a third party with genuine interest in the outcome of the case, the majority in the Court was persuaded to change its mind and uphold the act of Congress in creating the province. The previous voting was too close and it took the vote of just two Justices, changing their previous positions, to ensnare the victory from those who oppose the conversion of the Dinagat Islands into a province. Neither the Court nor its Justices flip-flopped in this case. They did not take one position, later moved to the opposite position, and then reverted to the first. They merely exercised their right to reconsider an erroneous ruling. The charge of flip-flopping is unfair.

Indeed, in this Petition for Prohibition with prayer for Temporary Restraining Order and Preliminary Prohibitory Injunction, petitioners assail the validity of Republic Act No. 7720, entitled, "An Act Converting the Municipality of Santiago, Isabela into an Independent Component City to be known as the City of Santiago," mainly because the Act allegedly did not originate exclusively in the House of Representatives as mandated by Section 24, Article VI of the 1987 Constitution. Also, petitioners claim that the Municipality of Santiago has not met the minimum average annual income required under Section 450 of the Local Government Code of 1991 in order to be converted into a component city. Undisputed is the following chronicle of the metamorphosis of House Bill No. 8817 into Republic Act No. 7720: G.R. No. 118303 January 31, 1996 On April 18, 1993, HB No. 8817, entitled "An Act Converting the Municipality of Santiago into an Independent Component City to be known as the City of Santiago," was filed in the House of Representatives with Representative Antonio Abaya as principal author. Other sponsors included Representatives Ciriaco Alfelor, Rodolfo Albano, Santiago Respicio and Faustino Dy. The bill was referred to the House Committee on Local Government and the House Committee on Appropriations on May 5, 1993. On May 19, 1993, June 1, 1993, November 28, 1993, and December 1, 1993, public hearings on HB No. 8817 were conducted by the House Committee on Local Government. The committee submitted to the House a favorable report, with amendments, on December 9, 1993. On December 13, 1993, HB No. 8817 was passed by the House of Representatives on Second Reading and was approved on Third Reading on December 17, 1993. On January 28, 1994, HB No. 8817 was transmitted to the Senate. Meanwhile, a counterpart of HB No. 8817, Senate Bill No. 1243, entitled, "An Act Converting the Municipality of Santiago into an Independent Component City to be Known as the City of Santiago," was filed in the Senate. It was introduced by Senator Vicente Sotto III, as principal sponsor, on May 19, 1993. This was just after the House of Representatives had conducted its first public hearing on HB No. 8817. On February 23, 1994, or a little less than a month after HB No. 8817 was transmitted to the Senate, the Senate Committee on

SENATOR HEHERSON T. ALVAREZ, SENATOR JOSE D. LINA, JR., MR. NICASIO B. BAUTISTA, MR. JESUS P. GONZAGA, MR. SOLOMON D. MAYLEM, LEONORA C. MEDINA, CASIANO S. ALIPON, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON. RAFAEL ALUNAN, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT, HON. JOSE MIRANDA, in his capacity as Municipal Mayor of Santiago and HON. CHARITO MANUFAY, HON. VICTORINO MIRANDA, JR., HON. ARTEMIO ALVAREZ, HON. DANILO VERGARA, HON. PETER DE JESUS, HON. NELIA NATIVIDAD, HON. CELSO CALEON and HON. ABEL MUSNGI, in their capacity as SANGGUNIANG BAYAN MEMBERS, MR. RODRIGO L. SANTOS, in his capacity as Municipal Treasurer, and ATTY. ALFREDO S. DIRIGE, in his capacity as Municipal Administrator, respondents. DECISION HERMOSISIMA, JR., J.: Of main concern to the petitioners is whether Republic Act No. 7720, just recently passed by Congress and signed by the President into law, is constitutionally infirm.

Local Government conducted public hearings on SB No. 1243. On March 1, 1994, the said committee submitted Committee Report No. 378 on HB No. 8817, with the recommendation that it be approved without amendment, taking into consideration the reality that H.B. No. 8817 was on all fours with SB No. 1243. Senator Heherson T. Alvarez, one of the herein petitioners, indicated his approval thereto by signing said report as member of the Committee on Local Government. On March 3, 1994, Committee Report No. 378 was passed by the Senate on Second Reading and was approved on Third Reading on March 14, 1994. On March 22, 1994, the House of Representatives, upon being apprised of the action of the Senate, approved the amendments proposed by the Senate. The enrolled bill, submitted to the President on April 12, 1994, was signed by the Chief Executive on May 5, 1994 as Republic Act No. 7720. When a plebiscite on the Act was held on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the conversion of Santiago into a city. The question as to the validity of Republic Act No. 7720 hinges on the following twin issues: (I) Whether or not the Internal Revenue Allotments (IRAs) are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city, and (II) Whether or not, considering that the Senate passed SB No. 1243, its own version of HB No. 8817, Republic Act No. 7720 can be said to have originated in the House of Representatives. I The annual income of a local government unit includes the IRAs Petitioners claim that Santiago could not qualify into a component city because its average annual income for the last two (2) consecutive years based on 1991 constant prices falls below the required annual income of Twenty Million Pesos (P20,000,000.00) for its conversion into a city, petitioners having computed Santiago's average annual income in the following manner: Total income (at 1991 constant prices) P 20,379,057.07 for 1991 Total income (at 1991 constant prices) P 21,570,106.87

for 1992 Total income for 1991 and 1992 Minus: IRAs for 1991 and 1992 Total income for 1991 and 1992 Average Annual Income P 15,730,043.00 P 26,219,120.94 P 13,109,560.47 ============ === P 41,949,163.94

By dividing the total income of Santiago for calendar years 1991 and 1992, after deducting the IRAs, the average annual income arrived at would only be P13,109,560.47 based on the 1991 constant prices. Thus, petitioners claim that Santiago's income is far below the aforesaid Twenty Million Pesos average annual income requirement. The certification issued by the Bureau of Local Government Finance of the Department of Finance, which indicates Santiago's average annual income to be P20,974,581.97, is allegedly not accurate as the Internal Revenue Allotments were not excluded from the computation. Petitioners asseverate that the IRAs are not actually income but transfers and/or budgetary aid from the national government and that they fluctuate, increase or decrease, depending on factors like population, land and equal sharing. In this regard, we hold that petitioners asseverations are untenable because Internal Revenue Allotments form part of the income of Local Government Units. It is true that for a municipality to be converted into a component city, it must, among others, have an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices.1 Such income must be duly certified by the Department of Finance. Resolution of the controversy regarding compliance by the Municipality of Santiago with the aforecited income requirement hinges on a correlative and contextual explication of the meaning of internal revenue allotments (IRAs) vis-a-vis the notion of income of a local government unit and the principles of local autonomy and

decentralization underlying the institutionalization and intensified empowerment of the local government system. A Local Government Unit is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs.3 Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio,4 the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources.5 Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral local government units to develop not only at their own pace and discretion but also with their own resources and assets. The practical side to development through a decentralized local government system certainly concerns the matter of financial resources. With its broadened powers and increased responsibilities, a local government unit must now operate on a much wider scale. More extensive operations, in turn, entail more expenses. Understandably, the vesting of duty, responsibility and accountability in every local government unit is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions.7 Availment of such resources is effectuated through the vesting in every local government unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries.8 The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue to the general fund of the local government and are used to finance its operations subject to specified modes of spending the same as provided for in the Local Government Code and its implementing rules and regulations. For instance, not less than twenty percent (20%) of the IRAs must be set aside for local development projects.9 As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the local government unit, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. This is as it should be, since income is defined in the Local Government Code to be all revenues and receipts collected or received forming the gross accretions of funds of the local government unit.10

The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit.11 They thus constitute income which the local government can invariably rely upon as the source of much needed funds. For purposes of converting the Municipality of Santiago into a city, the Department of Finance certified, among others, that the municipality had an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices. This, the Department of Finance did after including the IRAs in its computation of said average annual income. Furthermore, Section 450 (c) of the Local Government Code provides that "the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income." To reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it distinct from special funds or transfers referred to when the Code speaks of "funding support from the national government, its instrumentalities and government-owned-or-controlled corporations".12 Thus, Department of Finance Order No. 35-9313 correctly encapsulizes the full import of the above disquisition when it defined ANNUAL INCOME to be "revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Sections 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others" (Emphasis ours).14 Such order, constituting executive or contemporaneous construction of a statute by an administrative agency charged with the task of interpreting and applying the same, is entitled to full respect and should be accorded great weight by the courts, unless such construction is clearly shown to be in sharp conflict with the Constitution, the governing statute, or other laws.15 II In the enactment of RA No. 7720, there was compliance with Section 24, Article VI of the 1987 Constitution

Although a bill of local application like HB No. 8817 should, by constitutional prescription,16 originate exclusively in the House of Representatives, the claim of petitioners that Republic Act No. 7720 did not originate exclusively in the House of Representatives because a bill of the same import, SB No. 1243, was passed in the Senate, is untenable because it cannot be denied that HB No. 8817 was filed in the House of Representatives first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated the legislative process that culminated in the enactment of Republic Act No. 7720. No violation of Section 24, Article VI, of the 1987 Constitution is perceptible under the circumstances attending the instant controversy. Furthermore, petitioners themselves acknowledge that HB No. 8817 was already approved on Third Reading and duly transmitted to the Senate when the Senate Committee on Local Government conducted its public hearing on HB No. 8817. HB No. 8817 was approved on the Third Reading on December 17, 1993 and transmitted to the Senate on January 28, 1994; a little less than a month thereafter, or on February 23, 1994, the Senate Committee on Local Government conducted public hearings on SB No. 1243. Clearly, the Senate held in abeyance any action on SB No. 1243 until it received HB No. 8817, already approved on the Third Reading, from the House of Representatives. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill. We have already addressed this issue in the case of Tolentino vs. Secretary of Finance.17 There, on the matter of the Expanded Value Added Tax (EVAT) Law, which, as a revenue bill, is nonetheless constitutionally required to originate exclusively in the House of Representatives, we explained: . . . To begin with, it is not the law but the revenue bill which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. . . . as a result of the Senate action, a distinct bill may be produced. To

insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. xxx xxx xxx

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject. Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. . . .18 III Every law, including RA No. 7720, has in its favor the presumption of constitutionality It is a well-entrenched jurisprudential rule that on the side of every law lies the presumption of constitutionality.19Consequently, for RA No. 7720 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and

equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable doubt.20 Those who petition this court to declare a law to be unconstitutional must clearly and fully establish the basis that will justify such a declaration; otherwise, their petition must fail. Taking into consideration the justification of our stand on the immediately preceding ground raised by petitioners to challenge the constitutionality of RA No. 7720, the Court stands on the holding that petitioners have failed to overcome the presumption. The dismissal of this petition is, therefore, inevitable. WHEREFORE, the instant petition is DISMISSED for lack of merit with costs against petitioners. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur. G.R. No. L-52179 April 8, 1991 MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner vs. HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents. MEDIALDEA, J.: This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction seeking the nullification or modification of the proceedings and the orders issued by the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando Bania, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot. The antecedent facts are as follows: Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N.

Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court. At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries. On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner. Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause of action, nonsuability of the State, prescription of cause of action and the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision. In the course of the proceedings, the respondent judge issued the following questioned orders, to wit: (1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot; (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the supposed lack of jurisdiction;

(3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to Dismiss until the trial; (4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of time; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of July 13, 1976; (6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that parties have not yet submitted their respective memoranda despite the court's direction; and (7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration and/or order to recall prosecution witnesses for cross examination. On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as follows: IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against said defendants. The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot. SO ORDERED. (Rollo, p. 30) Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion which was then pending. However, respondent judge issued another order dated November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979 for having been filed out of time. Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979,

such should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition. Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner asserts that while appeal of the decision maybe available, the same is not the speedy and adequate remedy in the ordinary course of law. On the other hand, private respondents controvert the position of the petitioner and allege that the petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that petitioner has not considered that every court, including respondent court, has the inherent power to amend and control its process and orders so as to make them conformable to law and justice. (Rollo, p. 43.) The controversy boils down to the main issue of whether or not the respondent court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss. In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense, proceeded with the trial and thereafter rendered a decision against the municipality and its driver. The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its regular employee. The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its consent." Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express or implied consent.

Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.) Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid) Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39) A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660) Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of Indiana in 1916, thus: Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from

sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.) It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.) In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo, p. 29.) In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office. We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be

imposed on the municipality no duty to pay monetary compensation. All premises considered, the Court is convinced that the respondent judge's dereliction in failing to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge exceeded his jurisdiction when it ruled on the issue of liability. ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified, absolving the petitioner municipality of any liability in favor of private respondents. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. 71159 November 15, 1989 CITY OF MANILA, and EVANGELINE SUVA, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, IRENE STO. DOMINGO and for and in behalf of her minor children, VIVENCIO, JR., IRIS, VERGEL and IMELDA, all surnamed STO. DOMINGO, respondents. PARAS, J.: This is a petition for review on certiorari seeking to reverse and set aside: (a) the Decision of the Intermediate Appellate Court now Court of Appeals 1 promulgated on May 31, 1984 in AC-G.R. CV No. 00613-R entitled Irene Sto. Domingo et al., v. City Court of Manila et al., modifying the decision of the then Court of First Instance of Manila, Branch VIII 2 in Civil Case No. 121921 ordering the defendants (herein petitioners,) to give plaintiffs (herein private respondents) the right to use a burial lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to search the remains of the late Vivencio Sto. Domingo, Sr. and to bury the same in a substitute lot to be chosen by the plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, 1985 denying petitioner's motion for reconsideration. As found by the Court of Appeals and the trial court, the undisputed facts of the case are as follows: Brought on February 22, 1979 by the widow and children of the late Vivencio Sto. Domingo, Sr. was this action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari, officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge of the said burial grounds owned and operated by the City Government of Manila. Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father of the litigating minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194 of the North Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021 per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6, 2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which appears to be regular on its face. Apart from the aforementioned receipt, no other document was executed to embody such lease over the burial lot in question. In fact, the burial record for Block

No. 194 of Manila North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect the term of duration of the lease thereover in favor of the Sto. Domingos. Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, dated March 6, 1975, of the City Mayor of Manila (See Exh. 1) prescribing uniform procedure and guidelines in the processing of documents pertaining to and for the use and disposition of burial lots and plots within the North Cemetery, etc., subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio Sto. Domingo were laid to rest, was leased to the bereaved family for five (5) years only, subject lot was certified on January 25, 1978 as ready for exhumation. On the basis of such certification, the authorities of the North Cemetery then headed by defendant Joseph Helmuth authorized the exhumation and removal from subject burial lot the remains of the late Vivencio Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or bodega of the cemetery y Subsequently, the same lot in question was rented out to another lessee so that when the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and dismay, that the resting place of their dear departed did not anymore bear the stone marker which they lovingly placed on the tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari, and was told that the remains of her late husband had been taken from the burial lot in question which was given to another lessee. Irene Sto. Domingo was also informed that she can look for the bones of her deceased husband in the warehouse of the cemetery where the exhumed remains from the different burial lots of the North Cemetery are being kept until they are retrieved by interested parties. But to the bereaved widow, what she was advised to do was simply unacceptable. According to her, it was just impossible to locate the remains of her late husband in a depository containing thousands upon thousands of sacks of human bones. She did not want to run the risk of claiming for the wrong set of bones. She was even offered another lot but was never appeased. She was too aggrieved that she came to court for relief even before she could formally present her claims and demands to the city government and to the other defendants named in the present complaint. (Decision, Court of Appeals, pp. 23; Rollo, pp. 34-55)

The trial court, on August 4, 1981, rendered its Decision, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered, ordering the defendants to give plaintiffs the right to make use of another single lot within the North Cemetery for a period of forty-three (43) years four (4) months and eleven (11) days, corresponding to the unexpired term of the fully paid lease sued upon; and to search without let up and with the use of all means humanly possible, for the remains of the late Vivencio Sto. Domingo, Sr. and thereafter, to bury the same in the substitute lot to be chosen by the plaintiffs pursuant to this decision. For want of merit, defendant's counterclaim is DISMISSED. No pronouncement as to costs. SO ORDERED. (Rollo, p. 31) The decision was appealed to the Court of Appeals which on May 31, 1984 rendered a decision (Rollo, pp. 33-40) modifying the decision appealed from, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby REVERSED (is hereby modified) and another one is hereby entered: 1. Requiring in full force the defendants to look in earnest for the bones and skull of the late Vivencio Sto. Domingo, Sr., and to bury the same in the substitute lot adjudged in favor of plaintiffs hereunder; 2. Ordering defendants to pay plaintiffs-appellants jointly and severally P10,000.00 for breach of contract; 3. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P20,000.00 for moral damages; 4. Ordering defendants to pay plaintiffs-appellants jointly and severally, P20,000.00 for exemplary damages; 5. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P10,000.00 as and for attorney's fees; 6. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, on the foregoing amounts legal rate of interest computed from filing hereof until fully paid; and

7. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, the cost of suit. SO ORDERED. (Rollo, p. 40) The petitioners' motion for reconsideration was likewise denied. Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985. The grounds relied upon for this petition are as follows: I THE HONORABLE INTERMEDIATE APPELLATE COURT ERRED IN AWARDING DAMAGES AGAINST THE PETITIONERS HEREIN, NOTWITHSTANDING THEIR GOOD FAITH AND THEIR LACK OF KNOWLEDGE OR CONSENT TO THE REMOVAL OF THE SKELETAL REMAINS OF THE LATE VIVENCIO STO. DOMINGO, SR. FROM THE SUBJECT BURIAL LOT. II THE HON. INTERMEDIATE APPELLATE COURT ERRED IN HOLDING PETITIONERS HEREIN RESPONSIBLE FOR THE ALLEGED TORTS OF THEIR SUBORDINATE OFFICIALS AND EMPLOYEES, INSPITE OF THE PROVISIONS OF SECTION 4 OF THE REPUBLIC ACT NO. 409 (REVISED CHARTER OF MANILA) AND OTHER APPLICABLE JURISPRUDENCE ON THE SUBJECT EXEMPTING THE PETITIONERS FROM DAMAGES FROM THE MALFEASANCE OR MISFEASANCE OF THEIR OFFICIALS AND EMPLOYEES, IF THERE BE ANY IN THIS CASE. (Brief for Petitioners, Rollo, pp. 93-94) In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition was given due course. The pivotal issue of this case is whether or not the operations and functions of a public cemetery are a governmental, or a corporate or proprietary function of the City of Manila. The resolution of this issue is essential to the determination of the liability for damages of the petitioner city. Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They conclude that since the City is a political subdivision in the performance of its governmental function, it is immune from tort liability which may be caused by its public officers and subordinate

employees. Further Section 4, Article I of the Revised Charter of Manila exempts the city from liability for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provision of its charter or any other laws, or ordinance, or from negligence of said Mayor, Municipal Board or any other officers while enforcing or attempting to enforce said provisions. They allege that the Revised Charter of Manila being a special law cannot be defeated by the Human Relations provisions of the Civil Code being a general law. Private respondents on the other hand maintain that the City of Manila entered into a contract of lease which involve the exercise of proprietary functions with private respondent Irene Sto. Domingo. The city and its officers therefore can be sued for anyviolation of the contract of lease. Private respondents' contention is well-taken. Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the faculties of municipal corporations to be exercised by and through its city government in conformity with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its powers are twofold in character-public, governmental or political on the one hand, and corporate, private and proprietary on the other. Governmental powers are those exercised in administering the powers of the state and promoting the public welfare and they include the legislative, judicial, public and political. Municipal powers on the one hand are exercised for the special benefit and advantage of the community and include those which are ministerial, private and corporate. In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities and conveniences for its own community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the powers of a municipal corporation, it may acquire property in its public or governmental capacity, and private or proprietary capacity. The New Civil Code divides such properties into property for public use and patrimonial properties (Article 423), and further enumerates the properties for public use as provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provisions, cities or municipalities, all other property is patrimonial without prejudice to the provisions of special laws

(Article 424; Province of Zamboanga del Zamboanga, et al., 22 SCRA 1334 [1968]).

Norte v. City of

Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons ex contractu (Municipality of Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916). The Court further stressed: Municipal corporations are subject to be sued upon contracts and in tort.... xxx xxx xxx The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his employment, by which another who is free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within tile operation of this rule of law, and are liable accordingly, to civil actions for damages when the requisite elements of liability coexist. ... (Emphasis supplied) The Court added: ... while the following are corporate or proprietary in character, viz: municipal waterworks, slaughter houses, markets, stables, bathing establishments, wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized as municipal or city activities of a proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of Indiana, 60 N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis supplied) Under the foregoing considerations and in the absence of a special law, the North Cemetery is a patrimonial property of the City of Manila which was created by resolution of the Municipal Board of August 27, 1903 and January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances of the City of Manila). The administration and government of the cemetery are under the City Health Officer (Ibid., Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening of graves, niches, or tombs, the exhuming of remains, and the purification of the same (Ibid., Sec. 327) are under the charge and responsibility of the superintendent of the cemetery. The City of Manila furthermore

prescribes the procedure and guidelines for the use and dispositions of burial lots and plots within the North Cemetery through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the acts of dominion, there is, therefore no doubt that the North Cemetery is within the class of property which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence, obligations arising from contracts have the force of law between the contracting parties. Thus a lease contract executed by the lessor and lessee remains as the law between them. (Henson v. Intermediate Appellate Court, 148 SCRA 11 [1 987]). Therefore, a breach of contractual provision entitles the other party to damages even if no penalty for such breach is prescribed in the contract. (Boysaw v. Interphil Promotions, Inc., 148 SCRA 635 [1987]). Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private respondents and their wounded feelings upon discovery that the remains of their loved one were exhumed without their knowledge and consent, as said Court declared: It has been fully established that the appellants, in spite or perhaps because, of their lowly station in life have found great consolation in their bereavement from the loss of their family head, by visiting his grave on special or even ordinary occasions, but particularly on All Saints Day, in keeping with the deep, beautiful and Catholic Filipino tradition of revering the memory of their dead. It would have been but fair and equitable that they were notified of the intention of the city government to transfer the skeletal remains of the late Vivencio Sto. Domingo to give them an opportunity to demand the faithful fulfillment of their contract, or at least to prepare and make provisions for said transfer in order that they would not lose track of the remains of their beloved dead, as what has actually happened on this case. We understand fully what the family of the deceased must have felt when on All Saints Day of 1978, they found a new marker on the grave they were to visit, only to be told to locate their beloved dead among thousands of skeletal remains which to them was desecration and an impossible task. Even the lower court recognized this when it stated in its decision thus: All things considered, even as the Court commiserates with plaintiffs for the unfortunate happening complained of and untimely desecration of the resting place and remains of their deceased dearly beloved, it finds the reliefs prayed for by them lacking in

legal and factual basis. Under the aforementioned facts and circumstances, the most that plaintiffs ran ask for is the replacement of subject lot with another lot of equal size and similar location in the North Cemetery which substitute lot plaintiffs can make use of without paying any rental to the city government for a period of forty-three (43) years, four (4) months and eleven (11) days corresponding to the unexpired portion of the term of the lease sued upon as of January 25, 1978 when the remains of the late Vivencio Sto. Domingo, Sr. were prematurely removed from the disputed lot; and to require the defendants to look in earnest for the bones and skull of the late Vivencio Sto. Domingo Sr. and to bury the same in the substitute lot adjudged in favor of plaintiffs hereunder. (Decision, Intermediate Appellate Court, p. 7, Rollo, p. 39) As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision, Intermediate Appellate Court, p. 3, Rollo, pp. 5-6). Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is not meritorious for the said administrative order covers new leases. When subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and effect. PREMISES CONSIDERED, the Decision of the Intermediate Appellate Court is hereby AFFIRMED. SO ORDERED. Padilla, Sarmiento and Regalado, JJ., concur. Melencio-Herrera (Chairperson), J., is on leave.