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PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI),represented by its Secretary-General GEORGE “FGBFGEORGE” DULDULAO, Petitioner,

- versus -

COMMISSION ON ELECTIONS, Respondent.

G.R. No. 190529

Promulgated:

April 29, 2010

R E S O L U T I O N

BRION, J.:

The Philippine Guardians Brotherhood, Inc. (PGBI ) seeks in this petition for certiorari [1] and in themotion for reconsideration it subsequently filed to nullify Commission on Elections ( COMELEC ) ResolutionNo. 8679 dated October 13, 2009 insofar as it relates to PGBI, and the Resolution dated December 9, 2009denying PGBI‘s motion for reconsideration in SPP No. 09-004 (MP). Via these resolutions, the COMELECdelisted PGBI from the roster of registered national, regional or sectoral parties, organizations or coalitionsunder the party-list system.

BACKGROUND

Section 6(8) of Republic Act No. 7941 (RA 7941), otherwise known as the Party-List System Act,

provides:

Section 6. Removal and/or Cancellation of Registration. – The COMELECmay motu proprio or upon verified complaint of any interested party, remove orcancel, after due notice and hearing, the registration of any national, regional orsectoral party, organization or coalition on any of the following grounds:

x x x x

(8) It fails to participate in the last two (2) preceding elections or fails toobtain at least two per centum (2%) of the votes cast under the party-list system in thetwo (2) preceding elections for the constituency in which it has registered.[Emphasissupplied.]

The COMELEC replicated this provision in COMELEC Resolution No. 2847 – the Rules and RegulationsGoverning the Election of the Party-List Representatives through the Party-List System – which itpromulgated on June 25, 1996.

For the upcoming May 2010 elections, the COMELEC en banc issued on October 13, 2009Resolution No. 8679 deleting several party-list groups or organizations from the list of registered national,regional or sectoral parties, organizations or coalitions. Among the party-list organizations affected wasPGBI; it was delisted because it failed to get 2% of the votes cast in 2004 and it did not participate inthe 2007 elections. Nevertheless, the COMELEC stated in this Resolution that any national, regionalsectoral party or organizations or coalitions adversely affected can personally or through its authorizedrepresentative file a verified opposition on October 26, 2009.

PGBI filed its Opposition to Resolution No. 8679, but likewise sought, through its pleading, theadmission ad cautelam of its petition for accreditation as a party-list organization under the Party-ListSystem Act. Among other arguments, PGBI asserted that:

(1) The assailed resolution negates the right of movant and those similarlysituated to invoke Section 4 of R.A. No. 7941, which allows any party,organization and coalition already registered with the Commission to nolonger register anew; the party though is required to file with theCommission, not later than ninety (90) days before the election, amanifestation of its desire to participate in the party-list system; since PGBIfiled a Request/Manifestation seeking a deferment of its participation in the2007 elections within the required period prior to the 2007 elections, it hasthe option to choose whether or not to participate in the next succeedingelection under the same conditions as to rights conferred and

responsibilities imposed;

(2) The Supreme Court‘s ruling in G.R. No. 177548 – Philippine Mines SafetyEnvironment Association, also known as “MINERO” v. Commission on

Elections – cannot apply in the i nstant controversy for two reasons: (a) thefactual milieu of the cited case is removed from PGBI‘s; (b) MINERO, priorto delisting , was afforded the opportunity to be heard, while PGBI and the25 others similarly affected by Resolution No. 8679 were not. Additionally,the requirement of Section 6(8) has been relaxed by the Court‘s ruling inG.R. No. 179271 (Banat v. COMELEC ) and the exclusion of PGBI and the25 other party-list is a denial of the equal protection of the laws;

(3) The implementation of the challenged resolution should be suspendedand/or aborted to prevent a miscarriage of justice in view of the failure to

notify the parties in accordance with the same Section 6(8) or R.A. No.7941.[2]

The COMELEC denied PGBI‘s motion/opposition for lack of merit.

First , the COMELEC observed that PGBI clearly misunderstood the import of Section 4 of R.A.7941.[3] The provision simply means that without the required manifestation or if a party or organizationdoes not participate, the exemption from registration does not arise and the party, organization or coalitionmust go through the process again and apply for requalification; a request for deferment would not exemptPGBI from registering anew.

Second , the MINERO ruling is squarely in point, as MINERO failed to get 2% of the votes in2001 and did not participate at all in the 2004 elections.

Third, PGBI was given an opportunity to be heard or to seek the reconsideration of the action orruling complained of – the essence of due process; this is clear from Resolution No. 8679 which expresslygave the adversely affected parties the opportunity to file their opposition.

As regards the alternative relief of application for accreditation, the COMELEC found the motion tohave been filed out of time, as August 17, 2009 was the deadline for accreditation provided in Resolution8646. The motion was obviously filed months after the deadline.

PGBI came to us in its petition for certiorari , arguing the same positions i t raised with the COMELECwhen it moved to reconsider its delisting.

We initially dismissed the petition in light of our ruling in Philippine Mines Safety Environment Association, also known as “MINERO” v. Commission on Elections (Minero);[4] we said that no grave abuseof discretion exists in a ruling that correctly applies the prevailing law and jurisprudence. Applying Section6(8) of RA 7941, the Court disqualified MINERO under the following reasoning:

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Since petitioner by its own admission failed to get 2% of the votes in 2001 anddid not participate at all in the 2004 elections, it necessarily failed to get at least twoper centum (2%) of the votes cast in the two preceding elections. COMELEC,therefore, is not duty bound to certify it.

PGBI subsequently moved to reconsider the dismissal of its petition. Among other arguments,PGBI claimed that the dismissal of the petition was contrary to law, the evidence and existing

jurisprudence. Essentially, PGBI asserts that Section 6(8) of RA 7941 does not apply if one is to follow thetenor and import of the deliberations inclusive of the interpellations in Senate Bill No. 1913 on October 19,1994. It cited the following excerpts from the Records of the Senate:

Senator Gonzales: On the other hand, Mr. President, under ground no. (7),Section 5 – there are actually two grounds it states: ― Failure to participate in thelast two (2) preceding elections or its failure to obtain at least ten percent (10%) of thevotes case under the party-list system in either of the last two (2) preceding electionsf or the constituency in which it has registered‖

In short, the first ground is that, it failed to participate in the last two (2) precedingelections. The second is, failure to obtain at least 10 percent of the votes cast underthe party-list system in either of the last two preceding elections, Mr. President,

Senator Tolentino: Actually, these are two separate grounds.

Senator Gonzales: There are actually two grounds, Mr. President.

Senator Tolentino: Yes, Mr. President.[5] [Underscoring supplied.]

PGBI thus asserts that Section 6(8) does not apply to its situation, as it is obvious that it failed to participatein one (1) but not in the two (2) preceding elections. Implied in this is that it also failed to secure therequired percentage in one (1) but not in the two (2) preceding elections.

Considering PGBI‘s arguments, we granted the motion and reinstated the petition in the court‘sdocket.

THE ISSUES

We are called upon to resolve: (a) whether there is legal basis for delisting PGBI; and (b)whether PGBI‘s right to due process was violated.

OUR RULING

We find the petition partly impressed with merit.

a. The Minero Ruling

Our Minero ruling is an erroneous application of Section 6(8) of RA 7941; hence, it cannot sustainPGBI‘s delisting from the roster of registered national, regional or sectoral parties, organizations orcoalitions under the party-list system.

First , the law is clear – the COMELEC may motu proprio or upon verified complaint of anyinterested party, remove or cancel, after due notice and hearing, the registration of any national, regional orsectoral party, organization or coalition if it: (a) fails to participate in the last two (2) preceding

elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the party-list system inthe two (2) preceding elections for the constituency in which it has registered .[6] The word ―or‖ is adisjunctive term signifying disassociation and independence of one thing from the other things enumerated;

it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.[7] Thus,the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting.

Second , Minero is diametrically opposed to the legislative intent of Section 6(8) of RA 7941, asPGBI‘s cited congressional deliberations clearly show.

Minero therefore simply cannot stand. Its basic defect lies in its characterization of the non-participation of a party-list organization in an election as similar to a failure to garner the 2% threshold party-list vote. What Minero effectively holds is that a party list organization that does not participate in anelection necessarily gets, by default, less than 2% of the party-list votes. To be sure, this is a confused

interpretation of the law, given the law‘s clear and categorical language and the legislative intent to treat thetwo scenarios differently. A delisting based on a mixture or fusion of these two different and separategrounds for delisting is therefore a strained application of the law – in jurisdictional terms, it is aninterpretation not within the contemplation of the framers of the law and hence is a gravely abusiveinterpretation of the law.[8]

What we say here should of course take into account our ruling in Barangay Association for Advancement and National Transparency v. COMELEC [9](Banat ) where we partly invalidated the 2% party-list vote requirement provided in RA 7941 as follows:

We rule that, in computing the allocation of additional seats, thecontinued operation of the two percent threshold for the distribution of the additionalseats as found in the second clause of Section 11(b) of R.A. No. 7941is unconstitutional. This Court finds that the two percent threshold makes it

mathematically impossible to achieve the maximum number of available party listseats when the number of available party list seats exceeds 50. The continuedoperation of the two percent threshold in the distribution of the additional seatsfrustrates the attainment of the permissive ceiling that 20% of the members of theHouse of Representatives shall consist of party-list representatives.

The disqualification for failure to get 2% party-list votes in two (2) preceding elections should therefore beunderstood in light of the Banat ruling that party-list groups or organizations garnering less than 2% of theparty-list votes may yet qualify for a seat in the allocation of additional seats.

We need not extensively discuss Banat ‘s significance, except to state that a party-list group ororganization which qualified in the second round of seat allocation cannot now validly be delisted for thereason alone that it garnered less than 2% in the last two elections. In other words, the application of this

disqualification should henceforth be contingent on the percentage of party-list votes garnered by the lastparty-list organization that qualified for a seat in the House of Representatives, a percentage that is lessthan the 2% threshold invalidated in Banat . The disqualification should now necessarily be read to apply to

party-list groups or organizations that did not qualify for a seat in the two preceding elections for theconstituency in which it registered .

To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting; thesegrounds cannot be mixed or combined to support delisting; and (b) the disqualification for failure to garner2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, tomean failure to qualify for a party-list seat in two preceding elections for the constituency in which it hasregistered . This, we declare, is how Section 6(8) of RA 7941 should be understood and applied. We do sounder our authority to state what the law is,[10] and as an exception to the application of the principle of staredecisis.

The doctrine of stare decisis et non quieta movere (to adhere to precedents and not to unsettlethings which are established) is embodied in Article 8 of the Civil Code of the Philippines which provides,thus:


























ART. 8. Judicial decisions applying or interpreting the laws or the

Constitution shall form a part of the legal system of the Philippines.

The doctrine enjoins adherence to judicial precedents. It requires courts in a country to follow the ruleestablished in a decision of its Supreme Court. That decision becomes a judicial precedent to befollowed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on theprinciple that once a question of law has been examined and decided, it should be deemed settled andclosed to further argument.[11] The doctrine is grounded on the necessity for securing certainty and stability

of judicial decisions, thus:

Time and again, the court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of l aw as applicable to acertain state of facts, it will adhere to that principle and apply it to all future cases inwhich the facts are substantially the same. Stare decisis et non quietamovere. Stand by the decisions and disturb not what is settled. Stare decisis simplymeans that for the sake of certainty, a conclusion reached in one case should beapplied to those that follow if the facts are substantially the same, even thoughthe parties may be different. It proceeds from the first principle of justice that, absentany powerful countervailing considerations, like cases ought to be decidedalike. Thus, where the same questions relating to the same event have been putforward by the parties similarly situated as in a previous case litigated and decided bya competent court, the rule of stare decisis is a bar to any attempt to relitigate the

same issue.[12]

The doctrine though is not cast in stone for upon a showing that circumstances attendant in aparticular case override the great benefits derived by our judicial system from the doctrine of stare decisis,the Court is justified in setting it aside.[13]

As our discussion above shows, the most compelling reason to abandon Minero exists; it was clearlyan erroneous application of the law – an application that the principle of stability or predictability of decisionsalone cannot sustain. Minero did unnecessary violence to the language of the law, the intent of thelegislature, and to the rule of law in general. Clearly, we cannot allow PGBI to be prejudiced by thecontinuing validity of an erroneous ruling. Thus, we now abandon Minero and strike it out from our rulingcase law.

We are aware that PGBI‘s situation – a party list group or organization that failed to garner 2% in aprior election and immediately thereafter did not participate in the preceding election – is something that isnot covered by Section 6(8) of RA 7941. From this perspective, it may be an unintended gap in the law andas such is a matter for Congress to address. We cannot and do not address matters over which fulldiscretionary authority is given by the Constitution to the legislature; to do so will offend the principle ofseparation of powers. If a gap indeed exists, then the present case should bring this concern to thelegislature‘s notice.

b. The Issue of Due Process

On the due process issue, we agree with the COMELEC that PGBI‘s right to due process was notviolated for PGBI was given an opportunity to seek, as it did seek, a reconsideration of Resolution No.8679. The essence of due process, we have consistently held, is simply the opportunity to be heard; asapplied to administrative proceedings, due process is the opportunity to explain one‘s side or the opportunity

to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at alltimes and in all instances essential. The requirement is satisfied where the parties are afforded fair andreasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute

lack of notice and hearing x x x.[14] We find it obvious under the attendant circumstances that PGBI wasnot denied due process. In any case, given the result of this Resolution, PGBI has no longer any cause forcomplaint on due process grounds.

WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL COMELECResolution No. 8679 dated October 13, 2009 insofar as the petitioner PGBI is concerned, and theResolution dated December 9, 2009 which denied PGBI‘s motion for reconsideration in SPP No. 09-004(MP). PGBI is qualified to be voted upon as a party-list group or organization in the coming May 2010elections.

SO ORDERED.



















WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW PROVINCEBY THE RESPONDENTS IS AN ACT OF GERRYMANDERING.

IIIWHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND

TRULY REFLECTS THE MANDATE OF THE PEOPLE.[8]

In her Memorandum, respondent Governor Geraldine B. Ecleo-Villaroman of the Province ofDinagat Islands raises procedural issues. She contends that petitioners do not have the legal standing toquestion the constitutionality of the creation of the Province of Dinagat, since they have not been

directly injured by its creation and are without substantial interest over the matter in controversy. Moreover,she alleges that the petition is moot and academic because the existence of the Province of Dinagat Islandshas already commenced; hence, the petition should be dismissed.

The contention is without merit.

In Coconut Oil Refiners Association, Inc. v. Torres ,[9] the Court held that in cases of paramountimportance where serious constitutional questions are involved, the standing requirements may be relaxedand a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of

judicial review. In the same vein, with respect to other alleged procedural flaws, even assuming theexistence of such defects, the Court, in the exercise of i ts discretion, brushes aside these technicalities andtakes cognizance of the petition considering its importance and in keeping with the duty to determinewhether the other branches of the government have kept themselves within the limits of the Constitution.[10]

Further, supervening events, whether intended or accidental, cannot prevent the Court fromrendering a decision if there is a grave violation of the Constitution .[11] The courts will decide a questionotherwise moot and academic if it i s capable of repetition, yet evading review.[12]

The main issue is whether or not R.A. No. 9355 violates Section 10, Article X of the Constitution.

Petitioners contend that the proposed Province of Dinagat Islands is not qualified to become aprovince because it failed to comply with the land area or the population requirement, despite its compliancewith the income requirement. It has a total land area of only 802.12 square kilometers, which falls short ofthe statutory requirement of at least 2,000 square kilometers. Moreover, based on the NSO 2000 Census ofPopulation, the total population of the proposed Province of DinagatIslands is only 106,951, while thestatutory requirement is a population of at least 250,000 inhabitants.

Petitioners allege that in enacting R.A. No. 9355 into law, the House of Representatives and theSenate erroneously relied on paragraph 2 of Article 9 of the Rules and Regulations Implementing the LocalGovernment Code of 1991, which states that ―[t]he land area requirement shall not apply where the

proposed province is composed of one (1) or more islands.‖[13] The preceding italicized provision containedin the Implementing Rules and Regulations is not expressly or impliedly stated as an exemption to the landarea requirement in Section 461 of the Local Government Code. Petitioners assert that when theImplementing Rules and Regulations conflict with the law that they seek to implement, the law prevails.

On the other hand, respondents contend in their respective Memoranda that the Province ofDinagat Islands met the legal standard for its creation.

First, the Bureau of Local Government Finance certified that the average annual income of theproposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant priceswas P82,696,433.25.

Second, the Lands Management Bureau certified that though the land area of the Province ofDinagat Islands is 802.12 square kilometers, it is composed of one or more islands; thus, it is exempt from

the required land area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules andRegulations Implementing the Local Government Code.

Third, in the special census conducted by the Provincial Government of Surigao del Norte, withthe assistance of a District Census Coordinator of the NSO, the number of inhabitants in the Provinceof Dinagat Islands as of 2003, or almost three years before the enactment of R.A. No. 9355 in 2006, was371,576, which is more than the minimum requirement of 250,000 inhabitants.

In his Memorandum, respondent Governor Ace S. Barbers contends that although the result ofthe special census conducted by the Provincial Government of Surigao del Norte on December 2, 2003 was

never certified by the NSO, it i s credible since it was conducted with the aid of a representative of the NSO.He alleged that the lack of certification by the NSO was cured by the presence of NSO officials, whotestified during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands, and whoquestioned neither the conduct of the special census nor the validity of the result.

The Ruling of the Court

The petition is granted.

The constitutional provision on the creation of a province in Section 10, Article X of theConstitution 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 andsubject to approval by a majority of the votes cast in a plebiscite in the political unitsdirectly affected.‖[14]

Pursuant to the Constitution, the Local Government Code of 1991 prescribed the cri teria for thecreation of a province, thus:

SEC. 461. Requisites for Creation. -- (a) A province may be created ifit has an average annual income, as certified by theDepartment of Finance, of not less than Twenty millionpesos (P20,000,000.00) basedon 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) squarekilometers, 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 lessthan the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) ormore islands or is separated by a chartered city or cities which do not contribute tothe 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-recurringincome.[15]

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As a clarification of the territorial requirement, the Local Government Coderequires a contiguous territory of at least 2,000 square kilometers, as certified by the LandsManagement Bureau. However, the territory need not be contiguous if it comprises two (2) or moreislands or is separated by a chartered city or cities that do not contribute to the income of theprovince.

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

To answer the question above, the discussion in Tan v. Commission onElections (COMELEC )[16] is enlightening.

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

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

Sec. 3. No province, city, municipality or barrio (barangay in the 1987Constitution) may be created, divided, merged, abolished, or its boundarysubstantially 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 plebiscitein the unit or units affected.

The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similarto the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for population andterritory/land area are lower now, while the income requirement is higher. Sec. 197 of Batas Pambansa Blg.337, the former Local Government Code, provides:

SEC. 197.—Requisites for Creation.— A province may be created if it has aterritory of at least three thousand five hundred square kilometers, a population of atleast five hundred thousand persons, an average estimated annual income, ascertified by the Ministry of Finance, of not less than ten million pesos for the last threeconsecutive 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 minimumrequirements under this section. The territory need not be contiguous if itcomprises two or more islands.

The average estimated annual income shall include the income allotted forboth the general and infrastructure funds, exclusive of trust funds, transfers andnonrecurring income.[17]

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

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

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

square kilometers.

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

The Court stated that ―[s]uch an interpretation is strained, i ncorrect and fallacious.‖[18] It held:

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or moreislands." The use of the word territory in this particular provision of the LocalGovernment Code and in the very last sentence thereof, clearly, reflects that

"territory " as therein used, has reference only to the mass of land areaand excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous."Contiguous means (a) in physical contact; (b) touching along all or most of one side;(c) near, [n]ext, or adjacent (Webster's New World Dictionary, 1972 Ed., p.307). "Contiguous," when employed as an adjective, as in the above sentence,is only used when it describes physical contact, or a touching of sides of twosolid masses of matter . The meaning of particular terms in a statute may beascertained 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 contextof the sentence above, what need not be "contiguous" is the "territory" — the physicalmass 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 landarea but also territorial waters.It can be safely concluded that the word territoryin the first paragraph of Section 197 is meant to be synonymous with "landarea" only. The words and phrases used in a statute should be given the meaningintended by the legislature (82 C.J.S., p. 636). The sense in which the words are usedfurnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).[19]

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

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























ART. 9. Provinces.—(a) Requisites for creation— A province shall not be

created unless the following requisites on income and either population or land areaare present:

(1) Income — An average annual income ofnot less than Twenty Million Pesos (P20,000,000.00) for theimmediately preceding two (2) consecutive years based on1991 constant prices, as certified by DOF. The average annualincome shall include the income accruing to the general fund,

exclusive of special funds, special accounts, transfers, andnonrecurring income; and

(2) Population or land area - Population which shallnot be less than two hundred fifty thousand (250,000)inhabitants, as certified by National Statistics Office; or landarea which must be contiguous with an area of at least twothousand (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 citieswhich do not contribute to the income of the province. Theland area requirement shall not apply where the proposed

province is composed of one (1) or more islands. Theterritorial jurisdiction of a province sought to be created shall be

properly identified by metes and bounds.

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

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

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

In Holy Spirit Homeowners Association, Inc. v. Defensor , the provisions in the implementing rulesand regulations, which were questioned by petitioner therein,merely filled in the details i n accordance with a

known standard. The law that was questioned was R.A. No. 9207, otherwise known as ―NationalGovernment Center (NGC) Housing and Land Utilization Act of 2003.‖ It was therein declared that the―policy of the State [was] to secure the land tenure of the urban poor. Toward this end, lands located in the

NGC, Quezon City shall be utilized for housing, socioeconomic, civic, educational, religious and otherpurposes.‖ Section 5 of R.A. No. 9207 created the National Government Center Administration Committee,which was tasked to administer, formulate the guidelines and policies and implement the land disposition ofthe areas covered by the law.

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

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

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

In Section 5 of R.A. No. 9207, the Committee is granted the power toadminister, formulate guidelines and policies, and implement the disposition of theareas covered by the law. Implicit in this authority and the statute‘s objective of urban

poor housing is the power of the Committee to formulate the manner by which thereserved property may be allocated to the beneficiaries. Under this broad power,the Committee is mandated to fill in the details such as the qualifications ofbeneficiaries, the selling price of the lots, the terms and conditions governing the saleand other key particulars necessary to implement the objective of the law. Thesedetails are purposely omitted from the statute and their determination is left to thediscretion of the Committee because the latter possesses special knowledge andtechnical expertise over these matters.

The Committee‘s authority to fix the selli ng price of the lots may be likenedto the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for theguidance of the administrative authority is that the rate be reasonable and just.

However, it has been held that even in the absence of an express requirement as toreasonableness, this standard may be implied. In this regard, petitioners do not evenclaim that the selling price of the lots is unreasonable.

The provision on the price escalation clause as a penalty imposed to abeneficiary who fails to execute a contract to sell within the prescribed period is alsowithin the Committee‘s authority to formulate guidelines and policies to implementR.A. No. 9207. The Committee has the power to lay down the terms and conditionsgoverning the disposition of said lots, provided that these are reasonable and

just. There is nothing objectionable about prescribing a period within which theparties must execute the contract to sell. This condition can ordinarily be found in acontract to sell and is not contrary to law, morals, good customs, public order, orpublic policy.[25]























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

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

void.

Contrary to the contention of respondents, the extraneous provision cannot be considered asgermane to the purpose of the law to develop territorial and political subdivisions into self-reliantcommunities because, in the first place, it already conflicts with the criteria prescribed by the law increating a territorial subdivision.

Further, citing Galarosa v. Valencia,[26] the Office of the Solicitor General contends that the IRRsissued by the Oversight Committee composed of members of the l egislative and executive branches of thegovernment 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 toserve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office ofthe elective members of the Sangguniang Bayan of Sorsogon expired. Galarosa was the incumbent

president of theKatipunang Bayan or Association of Barangay Councils (ABC) of the Municipality ofSorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) ofSorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, theformer Local Government Code.

Sec. 494 of the Local Government Code of 1991[27] states that the duly elected presidents ofthe liga [ng mga barangay ] at the municipal, city and provincial levels, including the component cities andmunicipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan,sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such onlyduring their term of office as presidents of the liga chapters which, in no case, shall be beyond the term ofoffice of the sanggunian concerned. The section, however, does not fix the specific duration of their termas liga president. The Court held that this was left to the by-laws of the liga pursuant to Art. 211(g) of theRules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no

indication that Secs. 491[28]

and 494 should be given retroactive effect to adversely affect the presidents ofthe 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 asmembers of the Sangguniang Bayan. On the contrary, the IRR, prepared and issued by the OversightCommittee upon specific mandate of Sec. 533 of the Local Government Code, expressly recognizes andgrants the hold-over authority to the ABC presidents under Art. 210, Rule XXIX.[29] The Court upheld theapplication of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG, whosepurpose was to prevent a hiatus in the government pending the time when the successor may be chosenand inducted into office.

The Court held that Sec. 494 of the Local Government Code could not have been intended toallow 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 conferredupon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the

Code never intended to deprive the barangays of their representation in the sangguniang bayan during theinterregnum when theliga had yet to be formally organized with the election of its officers.

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

Courts determine the intent of the law from the literal language of the law within the law‘s fourcorners.[30] If the language of the law is plain, clear and unambiguous, courts simply apply the lawaccording to its express terms.[31] If a literal application of the law results in absurdity, impossibility or

injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of thelaw,[32] or may consider the implementing rules and regulations and pertinent executive issuances in thenature of executive construction.

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

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

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

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

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

Although the Provincial Government of Surigao del Norte conducted a special census of

population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was notcertified by the NSO as required by the Local Government Code.[34] Moreover, respondents failed to provethat with the population count of 371,000, the population of the original unit (mother Province of Surigao delNorte) would not be reduced to less than the minimum requirement prescribed by law at the time of thecreation of the new province.[35]

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

The contention of respondents does not persuade.

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

result of the provincial government‘s special census, which was conducted with the assistance of an NSOdistrict census coordinator, it was agreed by the participants that the said result was not certified by theNSO, which is the requirement of the Local Government Code. Moreover, the NSO representative,











































Statistician II Ma. Solita C. Vergara, stated that based on their computation, the population requirement of250,000 inhabitants would be attained by the Province of Dinagat Islands by the year 2065. Thecomputation was based on the growth rate of the population, excluding migration.

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

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

x x x x

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

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

THE CHAIRMAN. Is that…

MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only followkung ano po ‗yong mandated by the law. So, as mandated by the law, we only certify

those counts proclaimed official by the President.

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

MS. VERGARA. Yes, sir, but then we only conduct census ofpopulation every 10 years and we conduct special census every five years. So, inthis case, maybe by next year, we will be conducting the 2006.

THE CHAIRMAN. But next year will be quite a long time, the matter isnow being discussed on the table. So, is that the only thing you could say that it‘s not

authorized by National Statistics Office?

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

THE CHAIRMAN. May we hear from the Honorable Governor RobertLyndon Ace Barbers, your reply on the statement of the representative from NationalStatistics Office.

MR. BARBERS. Thank you, Mr. Chairman, good morning.Yes, your Honor, we have conducted a special census in the year

2003. We were accompanied by one of the employees from the Provincial NationalStatistics Office. However, we also admit the fact that our special census or the

special census we conducted in 2003 was not validated or certified by theNational Statistics Office, as provided by law. So, we admit on our part that thecertification that I have issued based on the submission of records of each locality or

each municipality from Dinagat Island[s] were true and correct based on our level, noton National Statistics Office level.

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

THE CHAIRMAN. Thank you, Governor. xxxx

x x x x

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

MS. VERGARA. We do not question po the results of any locallyconducted census, kasi po talagang we provide assistance while they‟reconducting their own census. But then, ang requirement po kasi is, basta wewill not certify—we will not certify any population count as a result noongkanilang locally conducted census. Eh, sa Local Government Code po, we all

know na ang xxx nire-require nila is a certification provided by NationalStatistics Office. „Yon po „yong requirement, di ba po?

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

MS. VERGARA. Your Honor.

REP. ECLEO (GLENDA). Mr. Chairman.

THE CHAIRMAN. Please , Ms. Vergara.

MS. VERGARA. ‗Yong sinasabi n‘yo po, sir, bale we computed theestimated population po ng Dinagat Province for the next years. So, based onour computation, mari-reach po ng Dinagat Province‟yong requirement na250,000 population by the year 2065 pa po based on the growth rates during theperiod of ….

THE CHAIRMAN. 2065?

MS. VERGARA. 2065 po.

xxxx

statcon true

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