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,
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 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 led by petitioners League of Cities of the
Philippines, et al. and (3) the ad cautelam motion for reconsideration led 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' rst 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 nal and executory and was recorded, in due course, in the Book of Entries of
Judgments on 21 May 2009.
However, after the nality 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 nds the motions for reconsideration meritorious
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 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
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 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 of cials 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 oodgates 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 nulli es 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
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 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 modi es 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 classi cation 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 speci c condition existing at the time of passage of RA 9009. That
speci c condition will never happen again. This violates the requirement that
a valid classi cation 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 ling 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 classi cation 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
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 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 af rmed; 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 clari catory 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 clari catory 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 signi es 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 af rmed. 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 nal. In fact, in its Resolution of 28 April
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 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
af rmative action, that is the 18 November 2008 Decision striking down the Cityhood
Laws. In short, the 18 November 2008 Decision stands af rmed. 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 :

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 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 veri able 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 oor 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 led 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 nal 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 nds 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 nal 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 nal and executory decisions. Before such
nality, 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
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 declared the judgment to be nal. 5 This critical issue of nality — 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.
Suf ce it to hark back on some highlights of that disposition: Before the December 21,
2009 Decision, the inconclusive 6-6 tie vote re ected 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. 1 0 Signi cantly, 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, 1 1 reconsidered the April 28, 2009 Resolution. 1 2 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 re ect 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. 1 3 A deadlocked vote of six is
not a majority and a non-majority does not constitute a rule with precedential value. 1 4
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. 1 5 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, 1 6 the reference being to the members of the
Court who actually took part in the November 18, 2008 Decision and voted thereon. 1 7
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. 1 8 ADcSHC

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 Petitioners' above posture is awed 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, 1 9 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. 2 0 Three (3) members took no part, 2 1 while
one (1) was on of cial leave. 2 2 As of December 21, 2009, only six (6) 2 3 of the original
eleven (11) participating and voting members remained with the Court, the ve (5)
others 2 4 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. 2 5 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 2 6 of the
Constitution, may be created only in accordance with the criteria established in the LGC.
In speci c 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. 2 7
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 quali catory 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 de ne, 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 nd 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" 2 8 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 codi ed 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
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 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 classi cation, the reasonableness
factor being met when the classi cation: (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. 2 9 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 quali ed 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 classi cation because the classi cation 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 classi cation
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
suf cient ground for invalidation. This is what Congress precisely did, as it in fact
applied the classi cation for as long as the conditions were obtaining. These
conditions to repeat are: the corresponding cityhood bill has been led before the
effectivity of RA 9009 and the concerned municipality quali es for cityhood status
under the original version of the 1991 LGC.
The allegation that Congress made, under the premises, an unreasonable
classi cation in favor of a few privileged LGUs cannot be accepted. As respondents
aptly observed, the classi cation 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

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 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 classi cation. 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 scal demands and needs. And to
borrow from Quinto v. Comelec, "the constitutionality of the law must be sustained even
if the reasonableness of the classi cation is 'fairly debatable.' As long as 'the bounds of
reasonable choice' are not exceeded, courts must defer to the legislative judgment." 3 0
This is as it should be for courts ought not to be delving into the wisdom of the
congressional classi cation, if reasonable, or the motivation underpinning the
classification. 3 1 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, of cial transactions with long term
implementability may have been entered into which cannot be easily undone without
legal and nancial 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 led by the intervening-petitioners
Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City and Oroquieta City.

Footnotes

1.Republic Act No. 7160, as amended.

2.See Francisco v. Court of Appeals, 313 Phil. 241, 258 (1995).

3.G.R. No. 166006, 14 March 2008, 548 SCRA 485, 516-517.

4.In Fortich v. Corona, G.R. No. 131457, 19 August 1999, 312 SCRA 751, 766, retired Justice
Jose Melo, in his Separate Opinion on the motion for reconsideration, stated that "in our
own Court En Banc , if the voting is evenly split, on a 7-7 vote, one (1) slot
vacant, or with one (1) justice inhibiting or disqualifying himself, the motion
(for reconsideration) shall, of course, not be carried because that is the end
of the line." (Emphasis supplied)
5.Michael Coenen, Original Jurisdiction Deadlocks, Yale Law Journal, March, 2009, 118 Yale
L.J. 1003, citing Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868).

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 6.Id.
7.In Defensor-Santiago v. COMELEC, G.R. No. 127325, the Court, by a vote of 6-6 with one (1)
justice inhibiting himself and another justice refusing to rule on the ground that the issue
was not ripe for adjudication, denied the motion for reconsideration. The case of
Lambino v. COMELEC, G.R. Nos. 174153 and 174299, cited Defensor-Santiago v.
COMELEC.
8.See Chief Justice Puno's separate opinion in Lambino v. COMELEC, G.R. Nos. 174153 and
174299, 25 October 2006, 505 SCRA 160.

9.See Recusals and the "Problem" of an Equally Divided Supreme Court by Ryan Black and Lee
Epstein, (http://epstein.law.northwestern.edu/research/recusal.pdf) , citing Durant, 74
U.S. at 109; Egger, (Student Author, Court of Appeals Review of Agency Action: The
Problem of En Banc Ties, 100 Yale L.J. 471 [1990]); Reynolds & Young, Equal Divisions
in the Supreme Court: History, Problems and Proposals, 62 N.C. L. Rev. 29, 31 (1983).

VELASCO, JR., dissenting:

1.Penned by Sr. Justice Antonio T. Carpio, the Decision was promulgated on a vote of 6-5.
Justices Quisumbing (now ret.), Austria-Martinez (now ret.), Carpio-Morales, Velasco, Jr.,
and Brion concurred. Justices Corona, Azcuna (now ret.), Chico-Nazario (now ret.), and
Leonardo de Castro joined the Dissenting Opinion of Justice Ruben T. Reyes (now ret.).

2.Those who voted to reverse the November 18, 2008 Decision were Justices Corona (now
Chief Justice), Velasco, Jr. (ponente) , Leonardo de Castro, Bersamin, Abad and
Villarama, Jr. Justice Carpio dissented and the following joined him in his Dissenting
Opinion: Justices Carpio Morales, Brion and Peralta. Justice Mariano del Castillo took no
part.

3.As amended by RA 9009, Sec. 450 of the LGC of 1991 provides that a municipality may be
converted into a component city if it has a certi ed locally generated average annual
income of at least PhP100 million for the last two (2) consecutive years based on 2000
constant prices.

4.Section 285 of the 1991 LGC provides: Allocation to Local Government Units. — The share of
[LGUs] in the [IRA] shall be allocated in the following manner:
(a) Provinces — Twenty-three percent (23%);

(b) Cities — Twenty-three percent (23%);

(c) Municipalities — Thirty-four percent (34%); and

(d) Barangays — Twenty percent (20%)

Provided, however, That the share of each province, city, and municipality shall be determined
on the basis of the following formula:
(a) Population — Fifty percent (50%);

(b) Land Area — Twenty-five percent (25%); and

(c) Equal sharing — Twenty-five percent (25%)

5.Manotok v. Barque, G.R. Nos. 162335 & 162605, December 18, 2008; citing Ginete v. Court of
Appeals, 292 SCRA 38 (1988).
6.SEC. 7. Procedure if opinion is equally divided. — Where the court en banc is equally divided
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 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.
7.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.
8.Sec. 4 (2) [Art. VIII]. All cases involving the constitutionality of a treaty, international or
executive agreement, or law shall be heard by the Supreme Court en banc, . . . 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.
9.The Resolution partly reads:

By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 [denying
respondent cities' motion for reconsideration of the November 18, 2008] is denied for
lack of merit. The motion is denied since there is no majority that voted to overturn the
Resolution of 31 March 2009.
The Second Motion for Reconsideration of the Decision of December 18, 2008 is Denied for
being a prohibited pleading. . . . No further pleading shall be entertained. Let entry of
judgment be made in due course.

Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion joined by [five others] . . . .
10.The second motion for reconsideration dated April 14, 2009 which was disposed of in the
April 28, 2009 Resolution dealt with the issue of constitutionality of the cityhood laws
and addressed the grounds upon which the November 18, 2008 Decision was
predicated.
11.In part the Resolution reads: "In the present case, the Court voted on the second motion for
reconsideration led by respondent cities. In effect, the Court allowed the ling of the
second motion for reconsideration. Thus the second motion for reconsideration was no
longer a prohibited pleading . . . considering the nality of the 18 November 2008
Decision which was recorded in the Book of Entries."
12.Respondents led on July 7, 2009 a Motion for Reconsideration of the Resolution of June 2,
2009.

13.Id.
14.Justice Puno's separate opinion in Lambino v. COMELEC, 505 SCRA 160 (2006).

15.Tan Tiac Chiong v. Hon. Cosico, 434 Phil. 753 (2002); Manotok v. Barque, supra.

16.Petitioners' Petition to Annul, pp. 5-7.

17.Id. at 6. Justice Peralta voted in the Resolution of March 31, 2009 resolving the December 9,
2008 first motion for reconsideration of the November 18, 2008 Decision.

18.Justice Peralta, the most senior of the five, was appointed on January 14, 2009.
19.Rollo (G.R. No. 178056), pp. 2764-2765.

20.Justices Quisumbing, Carpio, Austria-Martinez, Carpio Morales, Velasco, Jr. and Brion, voting
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 against the constitutionality; and Justices Corona, Azcuna Chico-Nazario, Leonardo-de
Castro and Reyes, voting for the constitutionality.

21.Chief Justice Puno and Justice Nachura.

22.Justice Santiago.

23.Justices Carpio, Corona, Carpio Morales, Velasco, Jr., Brion, and Leonardo-de Castro.

24.Justices Quisumbing, Chico Nazario, Azcuna, Austria Martinez, and Reyes.

25.Comment of respondent-cities on petitioner LCP's motion to annul, p. 21.

26.Section 10. No province [or] city . . . 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.)

27.Resolution, p. 6.

28.Majority Resolution, p. 14.

29.Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, A
COMMENTARY 124 (1996); citing People v. Cayat, 68 Phil. 12, 18 (1939).

30.Quinto v. COMELEC, G.R. No. 189698, February 22, 2010; citing Newark Superior Of cers
Ass'n v. City of Newark, 98 N.J. 212, 227, 486 A. 2d 305 (1985) and other cases.
31.Pangilinan v. Malaya, G.R. No. 104216, August 20, 1993, 225 SCRA 551.

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