The primordial criterion in the creation of local government units, particularly of a province, is economic viability.

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?

x x x x

HON. LAGUDA.  The reason why we are willing to increase the income, double than the House version, because we also believe that economic viability is really a minimum.  Land area and population are functions really of the viability of the area, because you have an income level which would be the trigger point for economic development, population will naturally increase because there will be an immigration.  However, if you disallow the particular area from being converted into a province because of the population problems in the beginning, it will never be able to reach the point where it could become a province simply because it will never have the economic take off for it to trigger off that economic development.

Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population.  Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector.  This is now the concern of the local officials.  But if we are going to tie the hands of the proponents, simply by telling them, “Sorry, you are now at 150 thousand or 200 thousand,” you will never be able to become a province because nobody wants to go to your place.  Why?  Because you never have any reason for economic viability.

x x x x

CHAIRMAN PIMENTEL.  Okay, what about land area?

HON. LUMAUIG.  1,500 square kilometers

HON. ANGARA.  Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…

CHAIRMAN PIMENTEL.  Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square kilometers.

HON. LAGUDA.  Ne, Ne.  A province is constituted for the purpose of administrative efficiency and delivery of basic services.

CHAIRMAN PIMENTEL.  Right.

HON. LAGUDA.  Actually, when you come down to it, when government was instituted, there is only one central government and then everybody falls under that.  But it was later on subdivided into provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL.  Okay.

HON. LAGUDA.  Now, what we’re seeing now is that the administrative efficiency is no longer there precisely because the land areas that we are giving to our governors is so wide that no one man can possibly administer all of the complex machineries that are needed.

Secondly, when you say “delivery of basic services,” as pointed out by Cong. Alfelor, there are sections of the province which have never been visited by public officials, precisely because they don’t have the time nor the energy anymore to do that because it’s so wide.  Now, by compressing the land area and by reducing the population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces, which is to deliver basic services and to make it more efficient in administration.

CHAIRMAN PIMENTEL.  Yeah, that’s correct, but on the assumption that the province is able to do it without being a burden to the national government.  That’s the assumption.

HON. LAGUDA.  That’s why we’re going into the minimum income level.  As we said, if we go on a minimum income level, then we say, “this is the trigger point at which this administration can take place.”[25]

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

For a Barangay:

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

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

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

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

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

(b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is located.

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

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

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

Municipality:

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

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

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

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

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

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

(i)                 Income – An average annual income of not less than Two Million Five Hundred Thousand Pesos (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 the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements.  All expenses incidental to the creation shall be borne by the petitioners.

City:

LGC:  SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (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,

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

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

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

LGC-IRR:  ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the following requisites on income and either population or land area are present:

(1)   Income – An average annual income of not less than Twenty Million Pesos (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 anew cityshall 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 LGC-IRR[26] and in the Whereas clauses of Administrative Order No. 270,[27] which read—

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

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals;

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

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

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

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

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

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

CHAIRMAN LINA.  Okay.

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

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

At any rate, this bill was passed by the House unanimously without any objection.   And as I have said a while ago, that this has been pending in the Senate for the last two years.  And Sen. Pimentel himself was just inSouth Cotabatoand 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 wholePhilippinesto create a new province, and that is quite the concern of the respective Congressmen.

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

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

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

On November 2, 1989, the Senator wrote me:

“Dear Congressman Chiongbian:

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

Thank you and warm regards.

Very truly yours,”

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

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

So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the House that are interested in this bill.  And they have been approaching the Speaker about this.  So, the Speaker reminded me to make sure that it takes the cudgel of the House approved version.

So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the House, but because the mother province will participate anyhow, you vote them down; and that is provided for in the Constitution.  As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized, subject to the plebiscite.  And why should we not allow that to happen in the provinces!  In other words, we don’t want the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that they are far away from civilization.

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

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

General Santos and the neighboring municipalities, and they are quite interested and even the AID people are asking me, “What is holding the creation of a new province when practically you need it?”  It’s not 20 or 30 kilometers from the capital town; it’s about 140 kilometers.  And imagine those people have to travel that far and our road is not like Metropolitan Manila.  That is as far as from here to Tarlac.  And there are municipalities there that are just one municipality is bigger than theprovinceofLa Union.  They have the income.  Of course, they don’t have the population because that’s a part of the land of promise and people fromLuzonare 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 thePhilippines, not because I am interested in my province.  Well, as far as I am concerned, you know, I am in the twilight years of my life to serve and I would like to serve my people well.  No personal or political interest here.  I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has already approved because we don’t want them to throw the Conference Committee Report after we have worked that the house Bill has been, you know, drawn over board and not even considered by the Senate.  And on top of that, we are considering a bill that has not yet been passed.  So I hope the Senator will take that into account.

Thank you for giving me this time to explain.

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

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

CHAIRMAN ALFELOR.  Kanino ‘yan?

CHAIRMAN LINA.  Book III.

CHAIRMAN ALFELOR.  Title?

CHAIRMAN LINA.  Title IV.

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

There are areas then, when since time immemorial, very few governors ever tread on those areas.  That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that isRagayGulf.  From Ragay there is a long stretch of coastal area.  From Albay going to Ragay, very few governors ever tread [there] before, even today.  That area now is infested with NPA.  That is the area of Congressman Andaya.

Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas.  With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time.  For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations.

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

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

CHAIRMAN ALFELOR.  Batanes is only six.

CHAIRMAN LINA.  Six town.  Siquijor?

CHAIRMAN ALFELOR.  Siquijor.  It is region?

CHAIRMAN LINA.  Seven.

CHAIRMAN ALFELOR.L  Seven.  Anim.

CHAIRMAN LINA.  Six also.

CHAIRMAN ALFELOR.  Six also.

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

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

CHAIRMAN LINA.  Camiguin, Camiguin.

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

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

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

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

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

That is the budget in process.

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

The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest intention of Congress to promote development in the previously underdeveloped and uninhabited land areas by  allowing  them  to  directly  share  in the  allocation  of  funds  under  the

national budget.  It  should  be remembered that, under Sections 284 and 285

of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population, and local revenue.[30]

Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history of the law,[31] or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive and/or legislative construction.  Pursuant to this principle, Article 9(2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC.

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

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

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

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

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

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

What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average annual income of P82,696,433.23 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 Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province.  This Court should not be instrumental in stunting such capacity.  As we have held in League of Cities of the Philippines v. Commission on Elections[35]    

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

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

http://sc.judiciary.gov.ph/jurisprudence/2011/april2011/180050.htm

 

Advertisements

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Creation of LGUs, LGU and tagged . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s