8/2/2019 Tan v Comelec Digest

1/2

TAN V. COMELEC (1986)

Alampay, J:

FACTS:

-Petitioners, who are residents of Province of

Negros Occidental, filed a petition for

prohibition to stop the COMELEC fromholding a plebiscite for the ratification of

Batas Pambansa Blg. 885 which provides for

the creation of Negros del Norte. The

plebiscite was scheduled for January 3, 1986.The petition was filed on December 3, 1985.

-Petitioners contend that BP 885 is

unconstitutional because Art. XI, Sec. 3 ofthe Constitution provides that no local

government unit may be created, divided,merged or abolished or its boundary

substantially altered unless it is in accordance

with the criteria established in the LocalGovernment Code and subject to the approval

by a majority of votes in the unit or units thus

affected.

Sec. 197 of the Local Government Code

enumerates the conditions for the creation ofa new local government unit and one of themis that:

its creation shall not reduce thepopulation and income of the mother

province or provinces at the time of

said creation to less than the minimum

requirements under this section.

-However, due to Christmas holiday, the

Supreme Court was only able to act with thepetition after the plebiscite was already held.

-The petitioners thus filed a supplemental pleading assailing the plebiscite on the

ground that only the inhabitants of Negros

del Norte were allowed to vote in the

plebiscite. Voters from the rest of Negros

Occidental were excluded from the

plebiscite.

-Respondents argued that the remaining cities

and municipalities of Province of Negros

Occidental not included in Negros del Nortedo not fall within the meaning and scope of

terms unit or units thus affected referred to

in Sec. 3, Art. XI. Of the Constitution.

-Respondents also argued that the issue is

already moot because the majority of

residents of Negros del Norte already ratifiedBP 885 in a plebiscite held on January 3,

1986.

ISSUES AND RULING:

ISSUE NO. 1: ON MOOTNESS

-The case is not moot because it involves an

issue that is capable of repetition but canevade review. Non-resolution of this case

might tempt those who have selfish motives

to create, divide, merge or abolish local

government units knowing that that SupremeCourt will not entertain challenges to their

acts if they manage to finalize those actsbefore the Court is able to respond.

ON MERITS

ISSUE NO. 2: WON unit or units affectedinclude the mother province

Yes. In the case at bar, the boundaries of the

existing province of Negros Occidentalwould necessarily be substantially altered by

the division of its existing boundaries in

order that there can be created the newprovince of Negros del Norte. Hence, both

the parent province of Negros Occidental and

the new province of Negros del Norte arepolitical units affected.

-The respondents cited Gov. Paredes v. Hon.

Executive Secretary to the President to

8/2/2019 Tan v Comelec Digest

2/2

defend its argument but that case only

involves a division of a barangay which is the

smallest unit in the Local Government Code.In the case at bar, what is involved is a

division of a province, the largest political

unit contemplated in Art. XI of theConstitution. Moreover, the Supreme Court

said that Gov. Paredes v. Executive Secretary

is one of those cases the discretion of theCourt is allowed considerable leeway.

-The Supreme Court adopted the dissenting

opinion of Justice Vicente Abad inLopez, Jr.v. COMELEC which declared

unconstitutional a referendum which did not

include all people of Bulacan and Rizal,

when such referendum were intended toascertain if the people of said provinces were

willing to give up some of their towns toMetropolitan Manila.

- It is a well-accepted rule that to ascertainthe meaning of a particular provision, it can

be gleaned from a provision in pari materia.

Parliamentary Bill No. 3644, which was the

draft bill of BP 885, provides that theplebiscite shall be conducted in areas affected

within a period of 120 days from the

approval of the Act. The proponents couldhave anticipated the strong challenge against

the legality of BP 885 that is why they

deliberately added that phrase that states thatthe territory covered by Negros del Norte

constitutes the unit affected.

ISSUE NO. 3: WON BP 885 isConstitutional

No. Sec. 97 of the Local Government Codestates that no province can be created unless

if it has at least 3,500 km2. Negros del Norte

only has at most 2,865 square kilometresconsidering the statistics relating to the land

area of municipalities and cities that

constitute Negros del Norte.

-Respondents argue that the water must be

included in the computation of the territory of

Negros del Norte.

-Supreme Court said no. Sec. 197 states that

territory need not be contiguous if itcomprises 2 or more islands. This goes to

show that the word territory has reference

only to the mass of land area and excludeswater over which the political unit exercises

control.

ISSUE NO. 4: WON Supreme Court maymandate COMELEC to hold another

plebiscite to include all the voters in the

entire province of Negros Occidental

-No. In the first place, BP 885 is

unconstitutional so it cannot be ratified by thepeople.