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.

[G.R. No. 177499. 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 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.

[G.R. No. 178056. 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 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 p: 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 code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied) aTIAES 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: . . . ." 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. CaSAcH 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, 3 the 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. CAIHTE 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: EcHAaS 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. 6 Undeniably, 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. 7 These 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. cCESTA 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 . . . city shall be created . . . 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 . . . city . . . 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. HcACST Corona, C.J., Carpio Morales, Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur. Separate Opinions VELASCO, JR., J., dissenting: As may be recalled, the Court, by Decision 1 dated November 18, 2008, declared as unconstitutional the sixteen (16) cityhood laws, namely Republic Act Nos. (RA) 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. By Decision of December 21, 2009, however, the Court declared as valid and constitutional the same Cityhood Laws, reversing, in the process, the November 18, 2008 Decision and setting aside three of its subsequent incidental orders issued after November 18, 2008. 2 In this recourse, main petitioners pray, without prejudice to the resolution of their motion to annul the December 21, 2009 Decision, that the Court reconsider the same decision and declare the aforementioned 16 Cityhood Laws unconstitutional. As in their underlying petition for prohibition, they latched their case primarily on two grounds: First, the Cityhood Laws sought to create cities which do not meet one of the criteria, or, to be precise, the verifiable income norm stipulated in Section 450 of the Local Government Code (LGC) of 1991, as amended by RA 9009. 3 Second, the said Cityhood Laws, by granting a different treatment to respondent local government units (LGUs), via an exemption from the standard PhP100 million floor income requirement set under RA 9009, infringe the equal protection clause of the Constitution. As argued, the circumstance that the Cityhood Laws in question were filed and deliberated upon in the 11th and/or 12th Congress, or before the enactment of RA 9009 during the 12th Congress, does not constitute a substantive distinction exacted under the equal protection guarantee that would warrant a preferential treatment of respondent LGUs. In their motion to annul, petitioner League of Cities of the Philippines (LCP), et al., would urge the Court to declare as void its December 21, 2009 Decision on the argument that it had no jurisdiction to issue the same, the earlier November 18, 2008 decision being now immutable, having in the meanwhile become final and executory, as in fact an entry of judgment has been made thereon. For their part, intervening petitioners, in their separate, but similarly worded Manifestation with Supplemental Ad Cautelam Motion for Reconsideration, adopted in toto the arguments raised in main

petitioners' motion to annul and in the latter's ad cautelam motion for consideration. All expressed dismay over the consequent reduction of their share in the internal revenue allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991. 4 In a bid to have the December 21, 2009 Decision declared as a nullity, petitioners argue, as a preliminary consideration, that the Court no longer has jurisdiction to modify, reconsider or set aside a final and executory, ergo unalterable judgment, like the November 18, 2008 Decision. The majority finds the motions for reconsideration meritorious and accordingly reinstates the Court's November 18, 2008 Decision declaring the 16 Cityhood Laws unconstitutional. I regret my inability to join the majority. SDTaHc Contrary to the majority's posture, the subject November 18, 2008 Decision never really became final and executory, albeit it has been recorded in the Book of Entries of Judgments on May 21, 2009. It is settled that the doctrine of immutability of judgments necessarily applies only to final and executory decisions. Before such finality, a court has plenary power to alter, modify or altogether set aside its own decision. In fact, the power of the Court to suspend or even disregard rules of procedure can be so pervasive and compelling as to alter even that it itself has already declared the judgment to be final. 5 This critical issue of finality — inclusive of the application of Sec. 7, Rule 56 of the Rules of Court 6 and A.M. No. 99-1-09-SC 7 on deadlock voting, read in conjunction with the constitutional voting requirement needed for a declaration of unconstitutionality of laws 8 — has been discussed in some detail in the December 21, 2009 Decision. I need not delve at length on the same issue again. Suffice it to hark back on some highlights of that disposition: Before the December 21, 2009 Decision, the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution 9 of the Court — resolving the second motion for reconsideration of the November 18, 2008 Decision — was the last vote on the issue of the validity or invalidity of cityhood laws. 10 Significantly, while the April 28, 2009 Resolution denied, for being a "prohibited pleading," the second motion for reconsideration covered thereby, for which reason an entry of judgment for the November 18, 2008 Decision was ordered made, the Court, in its Resolution of June 2, 2009, 11 reconsidered the April 28, 2009 Resolution. 12 In net effect, the second motion for reconsideration of the November 18, 2008 Decision was no longer considered a prohibitive pleading. Several motions and pleadings followed. In all, then, the issuance of the entry of judgment for the November 18, 2008 Decision was precipitate not only because several incidents were pending before the Court when the entry was made on May 21, 2009, but in view of the 6-6 tie vote on the second motion for reconsideration of the November 18, 2008 ruling. That voting result obviously does not reflect the "[decision] . . . of a majority of the Members of the [Court en banc] who actually took part in the deliberations on the issues of the case and voted thereon," contemplated in Sec. 4 (2), Art. VIII of the Constitution. 13 A deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value. 14 For sure, the issuance of an entry of judgment, by itself, does not, as the majority suggests, bar the Court, under any and all instances, from considering further submissions and from altering, if it must to avoid grave injustice, a decision covered thereby. For, the recall of entries of judgment for the purpose of reevaluating a case, albeit rare, is hardly a novelty. The Court has in the past bent backwards and recalled entries of judgment in the interest of justice. 15 For it is in relaxing the rules that the Court oftentimes serves the ends of justice and equity based on substantial and meritorious

grounds. Albeit not touched upon in the Resolution subject of this Dissent, petitioners have brought up the question of the appropriateness of the participation of certain members of the Court, particularly with respect to the Decision subject of the motion to annul. This Dissent will endeavor to address and perchance write finis to this issue. To petitioners, the votes cast by Justices Diosdado M. Peralta, Lucas P. Bersamin, Roberto A. Abad and Martin S. Villarama, Jr., for or against the December 21, 2009 Decision, should be excluded. For as argued, under Sec. 4 (2), Article VIII of the Constitution, all cases involving the constitutionality of law shall be heard by the Court en banc and "shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." Following what to the Court is petitioners' thesis, applying the aforecited Section 4 (2), those who may participate and vote on the December 21, 2009 Decision shall be limited to those who actually took part in the deliberations on the issues on the case and voted thereon, 16 the reference being to the members of the Court who actually took part in the November 18, 2008 Decision and voted thereon. 17 And the four (4) aforementioned members of the Court did not participate in the deliberations of the issues leading to the issuance of the November 18, 2008 Decision simply because they were not yet members of the Court. 18 ADcSHC Petitioners' above posture is flawed by the logic and premises holding it together. For, it assumes that the constitutionality of the Cityhood Laws and the arguments for and against the proposition were not put in issue, discussed, resolved and voted upon in the December 21, 2009 Decision. The sheer absurdity of this assumption needs no belaboring. But the bottom line is that said decision, for reasons articulated therein, expressly declared the Cityhood Laws to be valid and constitutional. As a matter of record, 19 eleven (11) members of the Court actually took part in the deliberation on the issues presented in G.R. Nos. 176951, 177499 and 178056 and voted on the November 18, 2008 Decision. 20 Three (3) members took no part, 21 while one (1) was on official leave. 22 As of December 21, 2009, only six (6) 23 of the original eleven (11) participating and voting members remained with the Court, the five (5) others 24 having meanwhile retired. If the participants in the December 21, 2009 Decision were to be limited to the members of the Court who actually took part in the deliberations of the November 18, 2008 Decision, as petitioners in all seriousness now contend, then only the six (6) members referred to above could have had validly participated and voted on the Decision of December 21, 2009. That would not even constitute a quorum of the en banc Court, as aptly pointed out by respondents. 25 And for sure, the same six (6) members could not even pass upon the main and intervening petitioners' motion for reconsideration, if their position were to be pursued to its logical conclusion. Now to the substantive merits of the case. The majority would insist that a city, as prescribed by Art. X, Sec. 10 26 of the Constitution, may be created only in accordance with the criteria established in the LGC. In specific terms, this means that any cityhood law must meet all criteria, such as the income criterion, presently set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. Congress cannot, so the majority claims, write such criteria in any other law. 27 I disagree. If only to emphasize the point, the word "code" in the cited constitutional provision refers to

a law Congress enacts in line with its plenary power to create local political subdivisions. As was said in the December 21, 2009 Decision — but without going presently into the qualificatory details therein spelled out — the only conceivable reason why the Constitution employs the clause "in accordance with the criteria established in the local government code" is to lay stress that it is Congress alone, and no other, which can define, prescribe and impose the criteria. The imposition may be effected either in a consolidated set of laws or a single-subject enactment, like RA 9009. And provided the imperatives of the equal protection clause are not transgressed, an exemption from the imposition may be allowed, just like the cityhood laws each of which contained the following provision: "Exemption from [RA] No. 9009. — The City of . . . shall be exempted from the income requirement prescribed under Republic Act No. 9009." I find it rather startling, therefore, that the majority opinion, without so much as taking stock of the legislative history of the 16 Cityhood Laws in relation to RA 9009, at least to determine the intent of the law, would conclude that Congress "exceeded and abused its law-making power" 28 when it enacted the said cityhood laws as an exception to RA 9009. It cannot be emphasized enough that if Congress has the plenary power to create political units, it surely can exercise the lesser power of requiring a menu of criteria and standards for their creation. As it is, the amendatory RA 9009 increasing the codified income requirement from Php20 million to Php100 million is really no different from the enactment of any of the Cityhood Law exempting the unit covered thereby from the codified standards. ESDHCa The majority's contention — that the exemption from the income requirement accorded by the Cityhood Laws to respondent cities is unconstitutional, being violative of the equal protection clause — does not commend itself for concurrence. As articulated in the December 21, 2009 Decision, the equal protection clause is not violated by an enactment based on reasonable classification, the reasonableness factor being met when the classification: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class. 29 As then amply explained in the said Decision, all these requisites have been met by the laws assailed in this proceeding as arbitrary and discriminatory under the equal protection clause. And I presently reiterate my submission that the exemption of respondent LGUs from the PhP100 million income requirement was meant to reduce the inequality brought about by the passage of the amendatory RA 9009, which, from the records, appears to have been enacted after the affected LGUs, with pending cityhood bills, had qualified under the original PhP20 million income norm. It is maintained that the distinguishing characteristic setting respondent cities apart from other LGUs desirous to be cities, i.e., mere pendency of the cityhood bills in the 11th Congress, would not avail respondent cities any. The differential treatment of respondent LGUs based on that characteristic does not, per the majority, constitute a valid classification because the classification applies only to the conditions prevailing during the 11th Congress, a phenomenon that will not happen again. It may readily be conceded that the conditions adverted to can no longer be repeated. But the scenario thus depicted by the majority would not render the legislative classification unconstitutionally arbitrary. As long as the classifying law is not limited in its application to conditions prevailing as of the time of its enactment, but is intended to apply for all times as long as the contemplated conditions exist, then there is no sufficient ground for invalidation. This is what Congress precisely did, as it in fact applied the classification for as long as the conditions were obtaining. These conditions to repeat are: the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for cityhood status under the original version of the 1991 LGC.

The allegation that Congress made, under the premises, an unreasonable classification in favor of a few privileged LGUs cannot be accepted. As respondents aptly observed, the classification was enforced, not on a single instance, but on sixteen (16) instances which spanned several months involving erstwhile municipalities spread across the archipelago, from the municipality of Batac in the North to the municipality of Lamitan, Basilan in Southern Mindanao. The ensuing excerpts from the December 21, 2009 Decision aptly capture the situation on the ground and should address the majority's equal protection of the law concern: Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of R.A. No. 9009 and were compliant with the then Sec. 450 of the LGC of 1991 that prescribed an income requirement of P20 Million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities which cannot claim as belonging to the same class as the sixteen cannot seek refuge in the cityhood laws. As to them, they have to comply with the P100 Million income requirement imposed by R.A. 9009. The issue voiced by the intervening movant-petitioners about the eventual reduction of their IRA share resulting from the creation of the sixteen (16) respondent cities is a matter worth looking into, but not by the Court, absent proof that the cityhood laws created an arbitrary classification. Under our system of government, it is Congress that for the most part is possessed with authority to balance clashing interests of different local political subdivisions and thereafter draw the line and set policy directions and choices responsive to their fiscal demands and needs. And to borrow from Quinto v. Comelec, "the constitutionality of the law must be sustained even if the reasonableness of the classification is 'fairly debatable.' As long as 'the bounds of reasonable choice' are not exceeded, courts must defer to the legislative judgment." 30 This is as it should be for courts ought not to be delving into the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification. 31 Yet, wittingly or unwittingly, this seems to be what the majority opinion intends to accomplish in this case. This should not be allowed. TcDIEH The majority resolution has made much of the invocation in the December 21, 2009 of the operative fact doctrine, stating the observation that the minority has adopted a theory that an unconstitutional law, if already implemented prior to its declaration, can no longer be revoked and its implementation must be continued despite being unconstitutional. In context, the assailed invocation was no more than a recognition that the creation of cities, or at least some of them, pursuant to the Cityhood Laws, has been approved by a majority of the votes cast in the plebiscite in the units affected. And as a result of such approval, official transactions with long term implementability may have been entered into which cannot be easily undone without legal and financial complications. Thus, the advisability on practical consideration, on top of strictly legal grounds consideration, of positing the constitutionality of the Cityhood Laws in question. What the majority deems as a minority did not say that a law otherwise invalid, cannot be invalidated by operation of the operative fact doctrine. Accordingly, I vote to deny the ad cautelam motion for consideration and the motion to annul the Decision of the Court dated December 21, 2009 interposed by petitioners League of Cities of the Philippines, et al., and the ad cautelam motion for reconsideration of the same decision separately

filed by the intervening-petitioners Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City and Oroquieta City.

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