LGU: REQUISITES & COMPOSITION STATUTORY REQUIREMENT

ARTICLE X, SECTION 10. No province, city, municipality, or barangay may be created, INCOME POPULATION LAND AREA
divided, merged, abolished, or its boundary substantially altered, except in accordance PROVINCE At least P20 million AND At least OR contiguous territory of
with the criteria established in the Local Government Code and subject to approval by 250, 000 2,000 sq. km;
a majority of the votes cast in a plebiscite in the political units directly affected. Need not be contiguous if it
-mother of the LGC when it comes to creation, conversion, division, abolition, merging, & consists of islands or
substantial in the LGU separated by cities that do
not contribute to the
PLEBISCITE: income of the province
-is a constitutional requirement concerned
COMPONENT At least P100 million AND At least OR 100 sq. km
INCOME, LAND AREA, & POPULATION: CITY (as amended by RA 150, 000
-statutory requirement (RA 7160) 9009)
in the case of a
municipality or a
LGC, Section 6. Authority to Create Local Government Units. - A local government unit may cluster of barangays be
be created, divided, merged, abolished, or its boundaries substantially altered either by converted into a
law enacted by Congress in the case of a province, city, municipality, or any other component city
political subdivision, or by ordinance passed by the sangguniang panlalawigan or HIGHLY At least P50 million AND At least 100 sq. km
sangguniang panlungsod concerned in the case of a barangay located within its URBANIZED 200, 000
territorial jurisdiction, subject to such limitations and requirements prescribed in this CITY
Code. MUNICIPALITY At least P2.5 million AND At least AND 50 sq. km
25, 000 Except if an island
REQUISITES FOR THE CREATION OF LGU BARANGAY NONE At least 2,000 NONE
Section 7. Creation and Conversion. - As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be based on At least 5,000
verifiable indicators of viability and projected capacity to provide services, to wit: in Metro
Manila, Special
(a) Income. - It must be sufficient, based on acceptable standards, to provide for all Metropolitan
essential government facilities and services and special functions commensurate with the Political
size of its population, as expected of the local government unit concerned; Subdivisions &
HUC
(b) Population. - It shall be determined as the total number of inhabitants within the
territorial jurisdiction of the local government unit concerned; and
NAVARRO et al. vs. EXECUTIVE SECRETARY
(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is -the Honorable Supreme Court ruled that Republic Act No. 9355 is as VALID and
separated by a local government unit independent of the others; properly identified by CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the
metes and bounds with technical descriptions; and sufficient to provide for such basic election of the officials thereof are declared VALID.
services and facilities to meet the requirements of its populace.
-The SC also ruled that the provision in Article 9(2) of the Rules and Regulations
Compliance with the foregoing indicators shall be attested to by the Department Implementing the Local Government Code of 1991 stating, “The land area requirement
of Finance (DOF), the National Statistics Office (NSO), and the Lands shall not apply where the proposed province is composed of one (1) or more islands,” is
Management Bureau (LMB) of the Department of Environment and Natural declared VALID.
Resources (DENR).
According to the SC, “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.
-even if Dinagat Island has not attained the land area requirement, it is still a valid
Province. Land area requirement should not be a sine qua non requirement for LGU
which are not contiguous, it is enough that it comply with the population & income
requirement.
CASE ANALYSIS 1
Q: Can autonomous region create barangay, municipality, city, or province?
A: Sema v. COMELEC
Issue: The authority by RA 9054 to ARMM to create provinces, municipalities,
cities, & brgys.
Held: Congress can only delegate the creation of municipalities and barangays
under its plenary power but in may not delegate the creation of provinces and
cities.
PROOF:
Republic Act No. 11054: BANGSAMORO ORGANIC LAW
Section 10. The Parliament may create, divide, merge, abolish, or substantially alter
boundaries of municipalities or barangays in accordance with a law enacted by the
Parliament. The municipalities or barangays created, divided, merged, or whose
boundaries are substantially altered, shall be entitled to their appropriate share in the
national taxes or Internal Revenue Allotment: Provided, That the criteria laid down in
Republic Act No. 7160, as amended, and other national laws shall be satisfied: Provided,
further, That it shall be approved by a majority of the votes cast in a plebiscite in the
political units directly affected.
When such acts require the creation of a legislative district, the Bangsamoro Government
shall cooperate and coordinate with the National Government through the Philippine
Congress-Bangsamoro Parliament Forum to prioritize the deliberations on the creation of
a legislative district.
Nothing in this Organic Law shall be construed to allow the Bangsamoro
Government to create legislative districts.
Issues relating to Article X, Section 20:
1. Whether section 19, Article VI of RA 9054 delegating the ARMM Regional Assembly the
power to create provinces, is constitutional.
Issues relating to Article VI, Section 5:
2. If the new province of Shariff Kabunsuan (created under MMA 201) is entitled to one
representative in the House of Representatives (HOR) without the need of a national law
creating a legislative district for such new province.
3. If the COMELEC resolution no. 7902 is constitutional, can the COMELEC
reapportion
Maguindanao’s first legislative district to solely Cotabato City.
Held:
1. Representative districts are created by law. Pursuant to Article X, Sections 20, the ARMM
Regional assembly may not create a representative district nor may it create a province.
There is neither an express prohibition nor an express grant of authority in
the Constitution for Congress to delegate to regional or local legislative bodies the power
to create local government units. However, under its plenary legislative powers,
Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises with
any provision of the Constitution. In fact, Congress has delegated to provincial boards, and
city and municipal councils, the power to create barangays within their jurisdiction,
subject to compliance with the criteria established in the Local Government
Code, and the plebiscite requirement in Section 10, Article X of the Constitution.
However, under the Local Government Code, “only x x x an Act of Congress” can create
provinces and cities
.
2. As mentioned earlier, Article X, Sections 20, the ARMM Regional assembly may not
create a representative district nor may it create a province, because under Article VI,
Section 5, paragraph 3 provinces automatically gets one representative district. Each city
with a population of at least two hundred and fifty thousand, or each province,
shall have at least have one representative in the House of Representatives.
There is no provision in the Constitution that conflicts with the delegation to
regional legislative bodies of the power to create municipalities and barangays, provided
section 10, Article X of the Constitution is followed. However, the creation of provinces and
cities is another matter. Section 5 (3), Article VI of the Constitution provides, “Each city
with a population of at least two hundred fifty thousand, or each province, shall
have at least one representative” in the House of Representatives. Similarly, Section 3 of
the Ordinance appended to the Constitution provides, “Any province that may hereafter be
created, or any city whose population may hereafter increase to more than two hundred
fifty thousand shall be entitled in the immediately following election to at least one
Member x x x.” A province cannot be created without a legislative district because it
will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance
appended to the Constitution. Thus, the power to create a province, or a city with a
population of 250,000 or more, requires also the power to create a legislative district. Even
the creation of a city with a population of less than 250,000 involves the power to create a
legislative district because once the city’s population reaches 250,000, the city
automatically becomes entitled to one representative under Section 5 (3),
Article VI of the Constitution and Section 3 of the Ordinance appended to the
Constitution. Thus, the power to create a province or city inherently involves the power
to create a legislative district.
3.
The court ordered the consolidation of GR 177597 and GR 178628 (If the COMELEC act in
Ultra Vires in issuing RN 7902). The petition in the latter echoed Sema’s
contention that the COMELEC acted ultra vires in issuing RA 7902 depriving
the voters of Cotabato City a representative in the HOR. The power to reapportion
legislative districts necessarily includes the power to create legislative districts out of
existing ones.—Section 5(1), Article VI of the Constitution vests in Congress the power to
increase, through a law, the allowable membership in the House of Representatives.
Section 5 (4) empowers Congress to reapportion legislative districts. The power to
reapportion legislative districts necessarily includes the power to create legislative
districts out of existing ones. Congress exercises these powers through a law that Congress
itself enacts, and not through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be increased, and new
legislative districts of Congress can be created, only through a national law passed by
Congress. In Montejo v. COMELEC, 242 SCRA 415 (1995), we held that the “power of
redistricting x x x is traditionally regarded as part of the power (of Congress) to
make laws,” and thus is vested exclusively in Congress. COMELEC Resolution No.
7902 is constitutional because it did not apportion a legislative district for
Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but
merely renamed Maguindanao’s first legislative district.
Court Ruling:
The court declared Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL
insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim
Mindanao the power to create provinces and cities. Thus, the court declared VOID Muslim
Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan.
Consequently, we rule that COMELEC Resolution No. 7902 is VALID
. municipalities by the cityhood laws rests on substantial distinction.
CASE ANALYSIS 2
League of Cities of the Philippines v. Comelec
During the 11th Congress, 57 bills seeking the conversion of municipalities into
component cities were filed before the House of Representatives. However, Congress acted
only on 33 bills. It did not act on bills converting 24 other municipalities into cities. During
the 12thCongress, R.A. No. 9009 became effective revising Section 450 of the Local
Government Code. It increased the income requirement to qualify for conversion into a city
from P20 million annual income to P100 million locally-generated income. In the
13th Congress, 16 of the 24 municipalities filed, through their respective sponsors,
individual cityhood bills. Each of the cityhood bills contained a common
provisionexempting the particular municipality from the 100 million income requirement
imposed by R.A. No. 9009. Are the cityhood laws converting 16 municipalities into cities
constitutional?
November 18, 2008 Ruling
No. The SC (voting 6-5) ruled that the exemptions in the City Laws is
unconstitutional because sec. 10, Art. X of the Constitution requires that such exemption
must be written into the LGC and not into any other laws. “The Cityhood Laws violate sec.
6, Art. X of the Constitution because they prevent a fair and just distribution of the
national taxes to local government units.” “The criteria, as prescribed in sec. 450 of the
LGC, must be strictly followed because such criteria prescribed by law, are material in
determining the “just share” of local government units (LGUs) in national taxes.” (League
of Cities of the Philippines v. Comelec GR No. 176951, November 18, 2008)
March 31, 2009 Ruling
No. The SC denied the first Motion for Reconsideration. 7-5 vote.
April 28, 2009 Ruling
No. The SC En Banc, by a split vote (6-6), denied a second motion for
reconsideration.
December 21, 2009 Ruling
Yes. The SC (voting 6-4) reversed its November 18, 2008 decision and declared as
constitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities into
cities. It said that based on Congress’ deliberations and clear legislative intent was that the
then pending cityhood bills would be outside the pale of the minimum income requirement
of PhP100 million that Senate Bill No. 2159 proposes; and RA 9009 would not have any
retroactive effect insofar as the cityhood bills are concerned. The conversion of a
municipality into a city will only affect its status as a political unit, but not its property as
such, it added. The Court held that the favorable treatment accorded the sixteen
The Court stressed that respondent LGUs were qualified cityhood applicants before the
enactment of RA 9009. To impose on them the much higher income requirement after
what they have gone through would appear to be indeed unfair. “Thus, the imperatives of
fairness dictate that they should be given a legal remedy by which they should be allowed
to prove that they have all the necessary qualifications for city status using the criteria set
forth under the LGC of 1991 prior to its amendment by RA 9009. (GR No. 176951, League
of Cities of the Philippines v. COMELEC; GR No. 177499, League of Cities of the
Philippines v. COMELEC; GR No. 178056, League of Cities of the Philippines v. COMELEC,
December 21, 2009) NOTE: TheNovember 18, 2008 ruling already became final and
executory and was recorded in the SC’s Book of Entries of Judgments on May 21, 2009.)
August 24, 2010 Ruling
No. The SC (voting 7-6) granted the motions for reconsideration of the League of Cities of
the Philippines (LCP), et al. and reinstated its November 18, 2008 decision declaring
unconstitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities
into cities. “Undeniably, the 6-6 vote did not overrule the prior majority en banc Decision
of 18 November 2008, as well as the prior majority en bancResolution 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,” the Court said. In
the latest resolution, the Court reiterated its November 18, 2008 ruling that the Cityhood
Laws violate sec. 10, Art. X of the Constitution which expressly provides that “no city…shall
be created…except in accordance with the criteria established in the local government
code.” It stressed that while all the criteria for the creation of cities must be embodied
exclusively in the Local Government Code, the assailed Cityhood Laws provided an
exemption from the increased income requirement for the creation of cities under sec. 450
of the LGC. “The unconstitutionality of the Cityhood Laws lies in the fact that Congress
provided an exemption contrary to the express language of the Constitution….Congress
exceeded and abused its law-making power, rendering the challenged Cityhood Laws void
for being violative of the Constitution,” the Court held.
The Court further held that “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.”
February 15, 2011 Ruling
Yes, the laws are constitutional. The February 15, 2011 resolution is the fourth ruling since
the High Court first resolved the Cityhood case in 2008.
April 12, 2011Ruling
Yes! It’s final. The 16 Cityhood Laws are constitutional. “We should not ever lose sight of
the fact that the 16 cities covered by the Cityhood Laws not only had conversion bills
pending during the 11th Congress, but have also complied with the requirements of the
[Local Government Code] LGC prescribed prior to its amendment by RA No. 9009.
Congress undeniably gave these cities all the considerations that justice and fair play
demanded. Hence, this Court should do no less by stamping its imprimaturto the clear and
unmistakable legislative intent and by duly recognizing the certain collective wisdom of
Congress,” the SC said.
The Court stressed that Congress clearly intended that the local government units covered
by the Cityhood Laws be exempted from the coverage of RA 9009, which imposes a higher
income requirement of PhP100 million for the creation of cities.
“The Court reiterated that while RA 9009 was being deliberated upon, the
Congress was well aware of the pendency of conversion bills of several municipalities,
including those covered by the Cityhood Laws. It pointed out that RA 9009 took effect on
June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative
intent to exempt the municipalities covered by the conversion bills pending during the
11th Congress, the House of Representatives adopted Joint Resolution No. 29 entitled Joint
Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June
30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on
the said Joint Resolution. Even so, the House readopted Joint Resolution No. 29 as Joint
Resolution No. 1 during the 12th Congress, and forwarded the same for approval to the
Senate, which again failed to prove it. Eventually, the conversion bills of respondents were
individually filed in the Lower House and fellesters.blogspot.com were all unanimously
and favorably voted upon. When forwarded to the Senate, the bills were also unanimously
approved. The acts of both Chambers of Congress show that the exemption clauses
ultimately incorporated in the Cityhood Laws are but the express articulations of the clear
legislative intent to exempt the respondents, without exception, from the coverage of RA
No. 9009. Thereby, RA 9009, and, by necessity, the LCG, were amended, not by repeal but
by way of the express exemptions being embodied in the exemption clauses.”
The Court held that the imposition of the income requirement of P100 million from local
sources under RA 9009 was arbitrary. “While the Constitution mandates that the creation
of local government units must comply with the criteria laid down in the LGC, it cannot be
justified to insist that the Constitution must have to yield to every amendment to the LGC
despite such amendment imminently producing effects contrary to the original thrusts of
the LGC to promote autonomy, decentralization, countryside development, and the
concomitant national growth.”
The 16 cities covered by the cityhood laws not only had conversion bills pending
during 11th Congress, but have also complied with the requirements of the LGC
prescribed prior to the enactment of RA 9009.
CASE ANALYSIS 3
THE PROVINCE OF NORTH COTABATO, et al . v . THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES, et al .
President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace
negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister
Mahathir Mohammad to convince the MILF to continue negotiating with the government.
MILF, thereafter, convened its Central Committee and decided to meet with the
Government of the Republic of the Philippines (GRP). Formal peace talks were held in
Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.) rehabilitation
aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the
finalization of the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The
said memorandum was set to be signed last August 5, 2008. In its body, it grants ―the
authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in addition, has the
freedom to enter into any economic cooperation and trade relation with foreign countries.
―The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the
extent of the territory of the Bangsamoro. It describes it as ―the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
With regard to governance, on the other hand, a shared responsibility and authority
between the Central Government and BJE was provided. The relationship was described as
―associative. With the formulation of the MOA-AD, petitioners aver that the negotiation
and finalization of the MOA-AD violates constitutional and statutory provisions on public
consultation, as mandated by Executive Order No. 3, and right to information. They further
contend that it violates the Constitution and laws. Hence, the filing of the petition.
ISSUES:
1) Whether or not the MOA-AD violates constitutional and statutory provisions on public
consultation and right to information 2) Whether or not the MOA-AD violates the
Constitution and the laws.
HELD:
The MOA-AD subject of the present cases is of public concern, involving as it does the
sovereignty and territorial integrity of the State, which directly affects the lives of the
public at large. Intended as a ―splendid symmetry to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution which provides that subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its transactions
involving public interest. Moreover, the policy of full public disclosure enunciated in
above-quoted Section 28 complements the right of access to information on matters of
public concern found in the Bill of Rights. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of officialdom to
give information even if nobody demands. The policy of public disclosure establishes a
concrete ethical principle for the conduct of public affairs in a genuinely open democracy,
with the people‘s right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the
people. Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for ―reasonable safeguards.‖ The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that
the broader right to information on matters of public concern is already enforceable while
the correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy. An essential element
of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels
for free political discussion be maintained to the end that the government may perceive
and be responsive to the people‘s will. Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms. The imperative of a
public consultation, as a species of the right to information, is evident in the ―marching
orders‖ to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O.
No. 3. The preambulatory clause of E.O. No. 3 declares that there is a need to further
enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people‘s participation. One of the three underlying principles of the
comprehensive peace process is that it ―should be community-based, reflecting the
sentiments, values and principles important to all Filipinos and ―shall be defined not by
the government alone, nor by the different contending groups only, but by all Filipinos as
one community. Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes ―continuing
consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people‘s participation in the peace
process.Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
“continuing” consultations, contrary to respondents’ position that plebiscite is “more than
sufficient consultation.Further, E.O. No. 3 enumerates the functions and responsibilities of
the PAPP, one of which is to ―conduct regular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the progress of
the comprehensive peace process. E.O. No. 3 mandates the establishment of the NPF to be
―the principal forum for the Presidential Adviser on Peace Progress (PAPP) to consult
with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of
society on both national and local levels, on the implementation of the comprehensive
peace process, as well as for government[-]civil society dialogue and consensus-building
on peace agenda and initiatives. In fine, E.O. No. 3 establishes petitioners’ right to be
consulted on the peace agenda, as a corollary to the constitutional right to information and
disclosure. In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the specific powers that would have
been vested in the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its provisions with it in
mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.
The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure
of governance based on executive, legislative, judicial and administrative institutions with
defined powers and functions in the comprehensive compact. A period of transition shall
be established in a comprehensive peace compact specifying the relationship between the
Central Government and the BJE. The nature of the ―associative relationship may have
been intended to be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of ―association in international law,
and the MOA-AD – by its inclusion of international law instruments in its TOR– placed
itself in an international legal context, that concept of association may be brought to bear
in understanding the use of the term ―associative in the MOA-AD. The MOA-AD contains
many provisions which are consistent with the international legal concept of association,
specifically the following: the BJE‘s capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to ensure the BJE‘s
participation in meetings and events in the ASEAN and the specialized UN agencies, and
the continuing responsibility of the Central Government over external defense. Moreover,
the BJE‘s right to participate in Philippine official missions bearing on negotiation of
border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain,
resembles the right of the governments of FSM and the Marshall Islands to be consulted by
the U.S. government on any foreign affairs matter affecting them. These provisions of the
MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely approximating it. The concept of
association is not recognized under the present Constitution. No province, city, or
municipality, not even the ARMM, is recognized under our laws as having an ―associative‖
relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The Constitution, however,
does not contemplate any state in this jurisdiction other than the Philippine State, much
less does it provide for a transitory status that aims to prepare any part of Philippine
territory for independence.
Even the mere concept animating many of the MOA-AD‘s provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be
created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines.
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is
a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states.
The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the M OA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws. Article X, Section 18 of the Constitution
provides that ―[t]he creation of the autonomous region shall be effective when approved
by a majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region.
The BJE is more of a state than an autonomous region. But even assuming that it is covered
by the term ―autonomous region in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d)
and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of
Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite – Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal – are automatically part of the BJE
without need of another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the ARMM and the
above-mentioned municipalities voted for inclusion therein in 2001, however, does not
render another plebiscite unnecessary under the Constitution, precisely because what
these areas voted for then was their inclusion in the ARMM, not the BJE.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in
the MOA-AD is to be effected. That constitutional provision states: ―The State recognizes
and promotes the rights of indigenous cultural communities within the framework of
national unity and development. An associative arrangement does not uphold national
unity. While there may be a semblance of unity because of the associative ties between the
BJE and the national government, the act of placing a portion of Philippine territory in a
status which, in international practice, has generally been a preparation for independence,
is certainly not conducive to national unity.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with
the present legal framework will not be effective until that framework is amended, the
same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government is, itself, a violation
of the Memorandum of Instructions from the President dated March 1, 2001, addressed to
the government peace panel. Moreover, as the clause is worded, it virtually guarantees that
the necessary amendments to the Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with
that process.
MOA-AD empowered the BANGSAMORO JURDICAL ENTITY the authority &
jurisdiction over the ancestral domain & ancestral lands of the Bangsamoro.
SC held that MOA-AD violated the Constitution. BJE is a state within the
state.
ARTICLE X
Local Government
General Provisions
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided.
SECTION 2. The territorial and political subdivisions shall enjoy local autonomy.
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.
SECTION 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities
and municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.
SECTION 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the local governments.
SECTION 6. Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.
SECTION 7. Local governments shall be entitled to an equitable share in the proceeds of
the utilization and development of the national wealth within their respective areas, in the
manner provided by law, including sharing the same with the inhabitants by way of direct
benefits.
SECTION 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.
SECTION 9. Legislative bodies of local governments shall have sectoral representation as
may be prescribed by law.
SECTION 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the Local Government Code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.
SECTION 11. The Congress may, by law, create special metropolitan political subdivisions,
subject to a plebiscite as set forth in Section 10 hereof. The component cities and
municipalities shall retain their basic autonomy and shall be entitled to their own local
executives and legislative assemblies. The jurisdiction of the metropolitan authority that
will hereby be created shall be limited to basic services requiring coordination.
SECTION 12. Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials, shall be
independent of the province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their right to vote for elective
provincial officials.
SECTION 13. Local government units may group themselves, consolidate or coordinate
their efforts, services, and resources for purposes commonly beneficial to them in
accordance with law.
SECTION 14. The President shall provide for regional development councils or other
similar bodies composed of local government officials, regional heads of departments and
other government offices, and representatives from non-governmental organizations
within the regions for purposes of administrative decentralization to strengthen the
autonomy of the units therein and to accelerate the economic and social growth and
development of the units in the region.
Autonomous Region
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures,
and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.
SECTION 16. The President shall exercise general supervision over autonomous regions to
ensure that the laws are faithfully executed.
SECTION 17. All powers, functions, and responsibilities not granted by this Constitution or
by law to the autonomous regions shall be vested in the National Government.
SECTION 18. The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multisectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic acts shall likewise
provide for special courts with personal, family, and property law jurisdiction consistent
with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall be included
in the autonomous region.
SECTION 19. The first Congress elected under this Constitution shall, within eighteen
months from the time of organization of both Houses, pass the organic acts for the
autonomous regions in Muslim Mindanao and the Cordilleras.
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
SECTION 21. The preservation of peace and order within the regions shall be the
responsibility of the local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The defense and security of
the regions shall be the responsibility of the National Government.