EN BANC
December 2009.
G.R. No. 176951 August 24, 2010
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President
JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS,
CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and
JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF
LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF
CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG,
PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE
OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON,
Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF
LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY
OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, Petitioners-In-Intervention.
x-----------------------x
G.R. No. 177499
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President
JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS,CITY
OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P.
TREÑAS in his personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF
BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY
OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC,
PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO
ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF
LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY
OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, Petitioners-In-Intervention.
x-----------------------x
G.R. No. 178056
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President
JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS,
CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and
JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF
AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and
MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF
LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY
OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, Petitioners-In-Intervention.
RESOLUTION
CARPIO, J.:
For resolution are (1) the ad cautelam motion for reconsideration and (2) motion to annul the
Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines, et al.
and (3) the ad cautelam motion for reconsideration filed by petitioners-in-intervention
Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City.
On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the
subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and
the equal protection clause. On 31 March 2009, the Supreme Court En Banc, again by a
majority vote, denied the respondents’ first motion for reconsideration. On 28 April 2009, the
Supreme Court En Banc, by a split vote, denied the respondents’ second motion for
reconsideration. Accordingly, the 18 November 2008 Decision became final and executory
and was recorded, in due course, in the Book of Entries of Judgments on 21 May 2009.
However, after the finality of the 18 November 2008 Decision and without any exceptional
and compelling reason, the Court En Banc unprecedentedly reversed the 18 November 2008
Decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21
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)
The Constitution is clear. The creation of local government units must follow the criteria
established in the Local Government Code and not in any other law. There is only one Local
Government Code.1 The Constitution requires Congress to stipulate in the Local Government
Code all the criteria necessary for the creation of a city, including the conversion of a
municipality into a city. Congress cannot write such criteria in any other law, like the
Cityhood Laws.
The clear intent of the Constitution is to insure that the creation of cities and other political
units must follow the same uniform, non-discriminatory criteria found solely in the Local
Government Code. Any derogation or deviation from the criteria prescribed in the Local
Government Code violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to increase the income
requirement from P20 million to P100 million for the creation of a city. This took effect on
30 June 2001. Hence, from that moment the Local Government Code required that any
municipality desiring to become a city must satisfy the P100 million income requirement.
Section 450 of the Local Government Code, as amended by RA 9009, does not contain any
exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent municipalities,
even though their cityhood bills were pending in Congress when Congress passed RA 9009.
The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt
respondent municipalities from the increased income requirement in Section 450 of the Local
Government Code, as amended by RA 9009. Such exemption clearly violates Section 10,
Article X of the Constitution and is thus patently unconstitutional. To be valid, such
exemption must be written in the Local Government Code and not in any other law,
including the Cityhood Laws.
RA 9009 is not a law different from the Local Government Code. Section 1 of RA 9009
pertinently provides: "Section 450 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, is hereby amended to read as follows: x x x." RA 9009 amended
Section 450 of the Local Government Code. RA 9009, by amending Section 450 of the Local
Government Code, embodies the new and prevailing Section 450 of the Local Government
Code. Considering the Legislature’s primary intent to curtail "the mad rush of municipalities
wanting to be converted into cities," RA 9009 increased the income requirement for the
creation of cities. To repeat, RA 9009 is not a law different from the Local Government
Code, as it expressly amended Section 450 of the Local Government Code.
The language of RA 9009 is plain, simple, and clear. Nothing is unintelligible or ambiguous;
not a single word or phrase admits of two or more meanings. RA 9009 amended Section 450
of the Local Government Code of 1991 by increasing the income requirement for the creation
of cities. There are no exemptions from this income requirement. Since the law is clear, plain
and unambiguous that any municipality desiring to convert into a city must meet the
increased income requirement, there is no reason to go beyond the letter of the law.
Moreover, where the law does not make an exemption, the Court should not create one.2
B. Operative Fact Doctrine
Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of
the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter
of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission
that the law is unconstitutional.
However, the minority’s novel theory, invoking the operative fact doctrine, is that the
enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities
with new sets of officials and employees operate to contitutionalize the unconstitutional
Cityhood Laws. This novel theory misapplies the operative fact doctrine and sets a gravely
dangerous precedent.
Under the minority’s novel theory, an unconstitutional law, if already implemented prior to
its declaration of unconstitutionality by the Court, can no longer be revoked and its
implementation must be continued despite being unconstitutional. This view will open the
floodgates to the wanton enactment of unconstitutional laws and a mad rush for their
immediate implementation before the Court can declare them unconstitutional. This view is
an open invitation to serially violate the Constitution, and be quick about it, lest the violation
be stopped by the Court.
The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to
the general rule that an unconstitutional law produces no effects. It can never be invoked to
validate as constitutional an unconstitutional act. In Planters Products, Inc. v. Fertiphil
Corporation,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.
Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain
unconstitutional because they violate Section 10, Article X of the Constitution. However, the
effects of the implementation of the Cityhood Laws prior to the declaration of their nullity,
such as the payment of salaries and supplies by the "new cities" or their issuance of licenses
or execution of contracts, may be recognized as valid and effective. This does not mean that
the Cityhood Laws are valid for they remain void. Only the effects of the implementation of
these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent
people who may have relied on the presumed validity of the Cityhood Laws prior to the
Court’s declaration of their unconstitutionality.
C. Equal Protection Clause
As the Court held in the 18 November 2008 Decision, there is no substantial distinction
between municipalities with pending cityhood bills in the 11th Congress and municipalities
that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is
not a material difference to distinguish one municipality from another for the purpose of the
income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or
determine the level of income of a municipality. Municipalities with pending cityhood bills
in the 11th Congress might even have lower annual income than municipalities that did not
have pending cityhood bills. In short, the classification criterion − mere pendency of a
cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which
is to prevent fiscally non-viable municipalities from converting into cities.
Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption
to a specific condition existing at the time of passage of RA 9009. That specific condition
will never happen again. This violates the requirement that a valid classification must not be
limited to existing conditions only. In fact, the minority concedes that "the conditions
(pendency of the cityhood bills) adverted to can no longer be repeated."
Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique
advantage based on an arbitrary date − the filing of their cityhood bills before the end of the
11th Congress – as against all other municipalities that want to convert into cities after the
effectivity of RA 9009.
In addition, limiting the exemption only to the 16 municipalities violates the requirement that
the classification must apply to all similarly situated. Municipalities with the same income as
the 16 respondent municipalities cannot convert into cities, while the 16 respondent
municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws,
even if it were written in Section 450 of the Local Government Code, would still be
unconstitutional for violation of the equal protection clause.
D. Tie-Vote on a Motion for Reconsideration
Section 7, Rule 56 of the Rules of Court provides:
SEC. 7. Procedure if opinion is equally divided. – Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had, the case shall again be deliberated on,
and if after such deliberation no decision is reached, the original action commenced in the
court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand
affirmed; and on all incidental matters, the petition or motion shall be denied. (Emphasis
supplied)
The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads:
A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE
COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A
MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE
CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE
MOTION.
IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS
DEEMED DENIED. (Emphasis supplied)
The clear and simple language of the clarificatory en banc Resolution requires no further
explanation. If the voting of the Court en banc results in a tie, the motion for reconsideration
is deemed denied. The Court’s prior majority action on the main decision stands affirmed.4
This clarificatory Resolution applies to all cases heard by the Court en banc, which includes
not only cases involving the constitutionality of a law, but also, as expressly stated in Section
4(2), Article VIII of the Constitution, "all other cases which under the Rules of Court are
required to be heard en banc."
The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily
resulted in the denial of the second motion for reconsideration. Since the Court was evenly
divided, there could be no reversal of the 18 November 2008 Decision, for a tie-vote cannot
result in any court order or directive.5 The judgment stands in full force.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.
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.1âwphi1
The dissenting opinion stated that "a deadlocked vote of six is not a majority and a non-
majority does not constitute a rule with precedential value."8
Indeed, a tie-vote is a non-majority – a non-majority which cannot overrule a prior
affirmative action, that is the 18 November 2008 Decision striking down the Cityhood Laws.
In short, the 18 November 2008 Decision stands affirmed. And assuming a non-majority
lacks any precedential value, the 18 November 2008 Decision, which was unreversed as a
result of the tie-vote on the respondents’ second motion for reconsideration, nevertheless
remains binding on the parties.9
Conclusion
Section 10, Article X of the Constitution expressly provides that "no x x x city shall be
created x x x except in accordance with the criteria established in the local government
code." This provision can only be interpreted in one way, that is, all the criteria for the
creation of cities must be embodied exclusively in the Local Government Code. In this case,
the Cityhood Laws, which are unmistakably laws other than the Local Government Code,
provided an exemption from the increased income requirement for the creation of cities under
Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood
Laws contravene the letter and intent of Section 10, Article X of the Constitution.
Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not
cripple Congress’ power to make laws. In fact, Congress is not prohibited from amending the
Local Government Code itself, as what Congress did by enacting RA 9009. Indisputably, the
act of amending laws comprises an integral part of the Legislature’s law-making power. The
unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption
contrary to the express language of the Constitution that "[n]o x x x city x x x shall be created
except in accordance with the criteria established in the local government code." In other
words, Congress exceeded and abused its law-making power, rendering the challenged
Cityhood Laws void for being violative of the Constitution.
WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009
Decision and REINSTATE the 18 November 2008 Decision declaring
UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391,
9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.
We NOTE petitioners’ motion to annul the Decision of 21 December 2009.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
CONCHITA CARPIO MORALES
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice JOSE C. MENDOZA
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

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

RENATO C. CORONA
Chief Justice

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).

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).