League of Cities of the Phil.

rep by LCP
National President Jerry P. Trenas, et al. vs.
COMELEC, et al.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 176951 August 24, 2010

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

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

x-----------------------x

G.R. No. 177499

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREÑAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREÑAS,CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity
as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE
OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA;
MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR;
MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE;
MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and
MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL,Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO,
CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF
BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF
ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF
PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF
TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF
URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF
HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and
CITY OF TAGUM, Petitioners-In-Intervention.

x-----------------------x

G.R. No. 178056

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREÑAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity
as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,
PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR,
PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS
ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO,
CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF
BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF
ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF
PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF
TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF
URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF
HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and
CITY OF TAGUM, Petitioners-In-Intervention.

RESOLUTION

CARPIO, J.:

For resolution are (1) the ad cautelam motion for reconsideration and (2) motion to annul
the Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines,
et al. and (3) the ad cautelam motion for reconsideration filed by petitioners-in-
intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and
Oroquieta City.

On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the
subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and
the equal protection clause. On 31 March 2009, the Supreme Court En Banc, again by a
majority vote, denied the respondents’ first motion for reconsideration. On 28 April 2009,
the Supreme Court En Banc, by a split vote, denied the respondents’ second motion for
reconsideration. Accordingly, the 18 November 2008 Decision became final and
executory and was recorded, in due course, in the Book of Entries of Judgments on 21
May 2009.

However, after the finality of the 18 November 2008 Decision and without any
exceptional and compelling reason, the Court En Banc unprecedentedly reversed the 18
November 2008 Decision by upholding the constitutionality of the Cityhood Laws in the
Decision of 21 December 2009.

Upon reexamination, the Court finds the motions for reconsideration meritorious and
accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws
unconstitutional.

A. Violation of Section 10, Article X of the Constitution

Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay shall be created, divided, merged, abolished

or its boundary substantially altered, except in accordance with the criteria
established in the local government codeand subject to approval by a majority of
the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied)

The Constitution is clear. The creation of local government units must follow the criteria
established in the Local Government Code and not in any other law. There is only one
Local Government Code.1 The Constitution requires Congress to stipulate in the Local
Government Code all the criteria necessary for the creation of a city, including the
conversion of a municipality into a city. Congress cannot write such criteria in any other
law, like the Cityhood Laws.

The clear intent of the Constitution is to insure that the creation of cities and other
political units must follow the same uniform, non-discriminatory criteria found solely in
the Local Government Code. Any derogation or deviation from the criteria prescribed in
the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the Local Government Code to increase the income
requirement from P20 million to P100 million for the creation of a city. This took effect
on 30 June 2001. Hence, from that moment the Local Government Code required that
any municipality desiring to become a city must satisfy the P100 million income
requirement. Section 450 of the Local Government Code, as amended by RA 9009, does
not contain any exemption from this income requirement.

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

RA 9009 is not a law different from the Local Government Code. Section 1 of RA 9009
pertinently provides: "Section 450 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, is hereby amended to read as follows: x x x." RA 9009 amended
Section 450 of the Local Government Code. RA 9009, by amending Section 450 of the
Local Government Code, embodies the new and prevailing Section 450 of the Local
Government Code. Considering the Legislature’s primary intent to curtail "the mad rush
of municipalities wanting to be converted into cities," RA 9009 increased the income
requirement for the creation of cities. To repeat, RA 9009 is not a law different from the
Local Government Code, as it expressly amended Section 450 of the Local Government
Code.

The language of RA 9009 is plain, simple, and clear. Nothing is unintelligible or

ambiguous; not a single word or phrase admits of two or more meanings. RA 9009
amended Section 450 of the Local Government Code of 1991 by increasing the income
requirement for the creation of cities. There are no exemptions from this income
requirement. Since the law is clear, plain and unambiguous that any municipality desiring
to convert into a city must meet the increased income requirement, there is no reason to
go beyond the letter of the law. Moreover, where the law does not make an exemption, the
Court should not create one.2

B. Operative Fact Doctrine

Under the operative fact doctrine, the law is recognized as unconstitutional but the effects
of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as
a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an
admission that the law is unconstitutional.

However, the minority’s novel theory, invoking the operative fact doctrine, is that the
enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities
with new sets of officials and employees operate to contitutionalize the unconstitutional
Cityhood Laws. This novel theory misapplies the operative fact doctrine and sets a gravely
dangerous precedent.

Under the minority’s novel theory, an unconstitutional law, if already implemented prior
to its declaration of unconstitutionality by the Court, can no longer be revoked and its
implementation must be continued despite being unconstitutional. This view will open
the floodgates to the wanton enactment of unconstitutional laws and a mad rush for their
immediate implementation before the Court can declare them unconstitutional. This view
is an open invitation to serially violate the Constitution, and be quick about it, lest the
violation be stopped by the Court.

The operative fact doctrine is a rule of equity. As such, it must be applied as an exception
to the general rule that an unconstitutional law produces no effects. It can never be
invoked to validate as constitutional an unconstitutional act. In Planters Products, Inc. v.
Fertiphil Corporation,3the Court stated:

The general rule is that an unconstitutional law is void. It produces no rights, imposes no
duties and affords no protection. It has no legal effect. It is, in legal contemplation,
inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the
levy. All levies paid should be refunded in accordance with the general civil code principle
against unjust enrichment. The general rule is supported by Article 7 of the Civil Code,
which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only

applies as a matter of equity and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be
erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue

burden on those who have relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a law creating it.
(Emphasis supplied)

The operative fact doctrine never validates or constitutionalizes an unconstitutional law.

Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but
the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be
left undisturbed as a matter of equity and fair play. In short, the operative fact doctrine
affects or modifies only the effects of the unconstitutional law, not the unconstitutional
law itself.

Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain
unconstitutional because they violate Section 10, Article X of the Constitution. However,
the effects of the implementation of the Cityhood Laws prior to the declaration of their
nullity, such as the payment of salaries and supplies by the "new cities" or their issuance
of licenses or execution of contracts, may be recognized as valid and effective. This does
not mean that the Cityhood Laws are valid for they remain void. Only the effects of the
implementation of these unconstitutional laws are left undisturbed as a matter of equity
and fair play to innocent people who may have relied on the presumed validity of the
Cityhood Laws prior to the Court’s declaration of their unconstitutionality.

C. Equal Protection Clause

As the Court held in the 18 November 2008 Decision, there is no substantial distinction
between municipalities with pending cityhood bills in the 11th Congress and
municipalities that did not have pending bills. The mere pendency of a cityhood bill in the
11th Congress is not a material difference to distinguish one municipality from another
for the purpose of the income requirement. The pendency of a cityhood bill in the
11th Congress does not affect or determine the level of income of a
municipality. Municipalities with pending cityhood bills in the 11th Congress might
even have lower annual income than municipalities that did not have pending cityhood
bills. In short, the classification criterion − mere pendency of a cityhood bill
in the 11th Congress − is not rationally related to the purpose of the law which
is to prevent fiscally non-viable municipalities from converting into cities.

Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption
to a specific condition existing at the time of passage of RA 9009. That specific
condition will never happen again. This violates the requirement that a valid
classification must not be limited to existing conditions only. In fact, the
minority concedes that "the conditions (pendency of the cityhood bills) adverted to can
no longer be repeated."

Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a
unique advantage based on an arbitrary date − the filing of their cityhood bills before the
end of the 11th Congress - as against all other municipalities that want to convert into
cities after the effectivity of RA 9009.

In addition, limiting the exemption only to the 16 municipalities violates the requirement
that the classification must apply to all similarly situated. Municipalities with the same
income as the 16 respondent municipalities cannot convert into cities, while the 16
respondent municipalities can. Clearly, as worded, the exemption provision found in the
Cityhood Laws, even if it were written in Section 450 of the Local Government Code,
would still be unconstitutional for violation of the equal protection clause.

D. Tie-Vote on a Motion for Reconsideration

Section 7, Rule 56 of the Rules of Court provides:

SEC. 7. Procedure if opinion is equally divided. - Where the court en banc is equally
divided in opinion, or the necessary majority cannot be had, the case shall again be
deliberated on, and if after such deliberation no decision is reached, the original action
commenced in the court shall be dismissed; in appealed cases, the judgment or order
appealed from shall stand affirmed; and on all incidental matters, the petition or
motion shall be denied. (Emphasis supplied)
The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads:

A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE

COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A
MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE
MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION.

IF THE VOTING RESULTS IN A TIE, THE MOTION FOR

RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied)

The clear and simple language of the clarificatory en banc Resolution requires no further
explanation. If the voting of the Court en banc results in a tie, the motion for
reconsideration is deemed denied. The Court’s prior majority action on the main
decision stands affirmed.4 This clarificatory Resolution applies to all cases heard
by the Court en banc, which includes not only cases involving the constitutionality of
a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, "all
other cases which under the Rules of Court are required to be heard en banc."

The 6-6 tie-vote by the Court en banc on the second motion for reconsideration
necessarily resulted in the denial of the second motion for reconsideration. Since the
Court was evenly divided, there could be no reversal of the 18 November 2008
Decision, for a tie-vote cannot result in any court order or directive.5 The judgment
stands in full force.6Undeniably, the 6-6 tie-vote did not overrule the prior
majority en banc Decision of 18 November 2008, as well as the prior
majority en banc Resolution of 31 March 2009 denying reconsideration. The
tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main
decision where there is no prior decision. Here, the tie-vote plainly signifies that there is
no majority to overturn the prior 18 November 2008 Decision and 31 March 2009
Resolution, and thus the second motion for reconsideration must be denied.

Further, the tie-vote on the second motion for reconsideration did not mean that the
present cases were left undecided because there remain the Decision of 18 November
2008 and the Resolution of 31 March 2009 where a majority of the Court en
banc concurred in declaring the unconstitutionality of the sixteen Cityhood Laws. In
short, the 18 November 2008 Decision and the 31 March 2009 Resolution,
which were both reached with the concurrence of a majority of the Court en
banc, are not reconsidered but stand affirmed.7These prior majority actions
of the Court en banc can only be overruled by a new majority vote, not a tie-
vote because a tie-vote cannot overrule a prior affirmative action.

The denial, by a split vote, of the second motion for reconsideration inevitably rendered
the 18 November 2008 Decision final. In fact, in its Resolution of 28 April 2009, denying
the second motion for reconsideration, the Court en banc reiterated that no further
pleadings shall be entertained and stated that entry of judgment be made in due course.

The dissenting opinion stated that "a deadlocked vote of six is not a majority and a non-
majority does not constitute a rule with precedential value."8
Indeed, a tie-vote is a non-majority - a non-majority which cannot overrule a prior
affirmative action, that is the 18 November 2008 Decision striking down the Cityhood
Laws. In short, the 18 November 2008 Decision stands affirmed. And assuming a non-
majority lacks any precedential value, the 18 November 2008 Decision, which was
unreversed as a result of the tie-vote on the respondents’ second motion for
reconsideration, nevertheless remains binding on the parties.9

Conclusion

Section 10, Article X of the Constitution expressly provides that "no x x x city shall be
created x x x except in accordance with the criteria established in the local
government code." This provision can only be interpreted in one way, that is, all the
criteria for the creation of cities must be embodied exclusively in the Local Government
Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local
Government Code, provided an exemption from the increased income requirement for
the creation of cities under Section 450 of the Local Government Code, as amended by
RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article
X of the Constitution.

Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not
cripple Congress’ power to make laws. In fact, Congress is not prohibited from amending
the Local Government Code itself, as what Congress did by enacting RA 9009.
Indisputably, the act of amending laws comprises an integral part of the Legislature’s law-
making power. The unconstitutionality of the Cityhood Laws lies in the fact that Congress
provided an exemption contrary to the express language of the Constitution that "[n]o x
x x city x x x shall be created except in accordance with the criteria established in the local
government code." In other words, Congress exceeded and abused its law-making power,
rendering the challenged Cityhood Laws void for being violative of the Constitution.

WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009

Decision and REINSTATE the 18 November 2008 Decision declaring
UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391,
9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

We NOTE petitioners’ motion to annul the Decision of 21 December 2009.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in
the above Resolution had been reached in consultation before the case was assigned to
the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice