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TAN V.

COMELEC (1986) Alampay, J: FACTS: -Petitioners, who are residents of Province of Negros Occidental, filed a petition for prohibition to stop the COMELEC from holding a plebiscite for the ratification of Batas Pambansa Blg. 885 which provides for the creation of Negros del Norte. The plebiscite was scheduled for January 3, 1986. The petition was filed on December 3, 1985. -Petitioners contend that BP 885 is unconstitutional because Art. XI, Sec. 3 of the Constitution provides that no local government unit may be created, divided, merged or abolished or its boundary substantially altered unless it is in accordance with the criteria established in the Local Government Code and subject to the approval by a majority of votes in the unit or units thus affected. Sec. 197 of the Local Government Code enumerates the conditions for the creation of a new local government unit and one of them is that: its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. -However, due to Christmas holiday, the Supreme Court was only able to act with the petition after the plebiscite was already held. -The petitioners thus filed a supplemental pleading assailing the plebiscite on the ground that only the inhabitants of Negros del Norte were allowed to vote in the plebiscite. Voters from the rest of Negros

Occidental plebiscite.

were

excluded

from

the

-Respondents argued that the remaining cities and municipalities of Province of Negros Occidental not included in Negros del Norte do not fall within the meaning and scope of terms unit or units thus affected referred to in Sec. 3, Art. XI. Of the Constitution. -Respondents also argued that the issue is already moot because the majority of residents of Negros del Norte already ratified BP 885 in a plebiscite held on January 3, 1986. ISSUES AND RULING: ISSUE NO. 1: ON MOOTNESS -The case is not moot because it involves an issue that is capable of repetition but can evade review. Non-resolution of this case might tempt those who have selfish motives to create, divide, merge or abolish local government units knowing that that Supreme Court will not entertain challenges to their acts if they manage to finalize those acts before the Court is able to respond. ON MERITS ISSUE NO. 2: WON unit or units affected include the mother province Yes. In the case at bar, the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the new province of Negros del Norte. Hence, both the parent province of Negros Occidental and the new province of Negros del Norte are political units affected. -The respondents cited Gov. Paredes v. Hon. Executive Secretary to the President to

defend its argument but that case only involves a division of a barangay which is the smallest unit in the Local Government Code. In the case at bar, what is involved is a division of a province, the largest political unit contemplated in Art. XI of the Constitution. Moreover, the Supreme Court said that Gov. Paredes v. Executive Secretary is one of those cases the discretion of the Court is allowed considerable leeway. -The Supreme Court adopted the dissenting opinion of Justice Vicente Abad in Lopez, Jr. v. COMELEC which declared unconstitutional a referendum which did not include all people of Bulacan and Rizal, when such referendum were intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. - It is a well-accepted rule that to ascertain the meaning of a particular provision, it can be gleaned from a provision in pari materia. Parliamentary Bill No. 3644, which was the draft bill of BP 885, provides that the plebiscite shall be conducted in areas affected within a period of 120 days from the approval of the Act. The proponents could have anticipated the strong challenge against the legality of BP 885 that is why they deliberately added that phrase that states that the territory covered by Negros del Norte constitutes the unit affected. ISSUE NO. Constitutional 3: WON BP 885 is

-Respondents argue that the water must be included in the computation of the territory of Negros del Norte. -Supreme Court said no. Sec. 197 states that territory need not be contiguous if it comprises 2 or more islands. This goes to show that the word territory has reference only to the mass of land area and excludes water over which the political unit exercises control. ISSUE NO. 4: WON Supreme Court may mandate COMELEC to hold another plebiscite to include all the voters in the entire province of Negros Occidental -No. In the first place, BP 885 is unconstitutional so it cannot be ratified by the people.

No. Sec. 97 of the Local Government Code states that no province can be created unless if it has at least 3,500 km2. Negros del Norte only has at most 2,865 square kilometres considering the statistics relating to the land area of municipalities and cities that constitute Negros del Norte.