EN BANC

[G.R. No. L-59180. January 29, 1987.]

CLEMENTINO TORRALBA and RE L. RUGAY , petitioners, vs. THE

MUNICIPALITY OF SIBAGAT, PROVINCE OF AGUSAN DEL SUR and
ITS MUNICIPAL OFFICERS , respondents.

DECISION

MELENCIO-HERRERA , J : p

Challenged in the instant Petition, as violative of Section 3, Article XI of the 1973

Constitution, is Batas Pambansa Blg. 56, enacted on 1 February 1980, creating the
Municipality of Sibagat, Province of Agusan de Sur. The pertinent provisions of BP 56
read:
"Sec. 1 The barangay of Ilihan, Sinai, Sibagat, El Rio, Afga,
Tabontabon, Perez, Magsaysay, Santa Cruz, Santa Maria, San Isido, Villagit, Del
Rosario, Anahauan, Mahayahay, and San Vicente, all in the Municipality of
Bayugan, Province of Agusan del Sur, are hereby separated from said
municipality to form and constitute an independent Municipality of Sibagat
without affecting in any manner the legal existence of the mother Municipality of
Bayugan.
"Sec. 2. The boundaries of the new Municipality of Sibagat will be:
Beginning at the point of intersection of the Cabadbaran-Old Bayugan and
Surigao del Sur boundaries; thence in a southernly direction following the Old
Bayugan and Cabadbaran, Old Bayugan and Butuan City, Old Bayugan and Las
Nieves boundaries, until it reaches the point of intersection of Old Bayugan,
Esperanza and the Municipality of Las Nieves; . . .
"Sec. 3. The seat of government of the newly created municipality
shall be in Barangay Sibagat.

"Sec. 4. Except as herein provided, all provisions of laws, now or

hereafter applicable to regular municipalities shall be applicable to the new
Municipality of Sibagat.

"Sec. 5. After rati cation by the majority of the votes cast in a

plebiscite to be conducted in the area or areas affected within a period of ninety
(90) days after the approval of this Act, the President (Prime Minister) shall
appoint the Mayor and other Officials of the new Municipality of Sibagat."

Petitioners are residents and taxpayers of Butuan City, with petitioner,

Clementino Torralba, being a member of the Sangguniang Panglunsod of the same City.
Respondent municipal officers are the local public officials of the new Municipality. prcd

Section 3, Article XI of the 1973 Constitution, said to have been infringed, is

reproduced hereunder:
"Sec. 3. No province, city, municipality, or barrio may be created,
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 divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the Local Government Code, and
subject to the approval by a majority of the votes cast in a plebiscite in the unit or
units affected."

The thrust of petitioners' argument is that under the aforequoted provision, the
Local Government Code must rst be enacted to determine the criteria for the creation,
division, merger, abolition, or substantial alteration of the boundary of any province, city,
municipality, or barrio; and that since no Local Government Code had as yet been
enacted as of the date BP 56 was passed, that statute could not have possibly
complied with any criteria when respondent Municipality was created, hence, it is null
and void.
It is a fact that the Local Government Code came into being only on 10 February
1983 so that when BP 56 was enacted, the code was not yet in existence. The evidence
likewise discloses that a plebiscite had been conducted among the people of the
unit/units affected by the creation of the new Municipality, who expressed approval
thereof; and that officials of the newly created Municipality had been appointed and had
assumed their respective positions as such.
We nd no trace of invalidity of BP 56. The absence of the Local Government
Code at the time of its enactment did not curtail nor was it intended to cripple
legislative competence to create municipal corporations. Section 3, Article XI of the
1973 Constitution does not proscribe nor prohibit the modi cation of territorial and
political subdivisions before the enactment of the Local Government Code. It contains
no requirement that the Local Government Code is a condition sine qua non for the
creation of a municipality, in much the same way that the creation of a new municipality
does not preclude the enactment of a Local Government Code. What the Constitutional
provision means is that once said Code is enacted, the creation, modi cation or
dissolution of local government units should conform with the criteria thus laid down.
In the interregnum, before the enactment of such Code, the legislative power remains
plenary except that the creation of the new local government unit should be approved
by the people concerned in a plebiscite called for the purpose.
The creation of the new Municipality of Sibagat conformed to said requisite. A
plebiscite was conducted and the people of the unit/units affected endorsed and
approved the creation of the new local government unit (parag. 5, Petition; p. 7,
Memorandum). In fact, the conduct of said plebiscite is not questioned herein. The
o cials of the new Municipality have effectively taken their oaths of o ce and are
performing their functions. A de jure entity has thus been created.
It is a long-recognized principle that the power to create a municipal corporation
is essentially legislative in nature. In the absence of any constitutional limitations, a
legislative body may create any corporation it deems essential for the more e cient
administration of government (I McQuillin, Municipal Corporations, 3rd ed., 509). The
creation of the new Municipality of Sibagat was a valid exercise of legislative power
then vested by the 1973 Constitution in the Interim Batasang Pambansa. LibLex

We are not unmindful of the case of Tan vs. COMELEC (142 SCRA 727 [1986]),
striking down as unconstitutional BP Blg. 885 creating a new province in the Island of
Negros known as the Province of Negros del Norte, and declaring the plebiscite held in
connection therewith as illegal. There are signi cant differences, however, in the two
cases among which may be mentioned the following: in the Tan case, the Local
Government Code a]ready existed at the time that the challenged statute was enacted
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 on 3 December 1985; not so in the case at bar. Secondly, BP Bldg. 885 in the Tan case
con ned the plebiscite to the "proposed new province" to the exclusion of the voters in
the remaining areas, in contravention of the Constitutional mandate and of the Local
Government Code that the plebiscite should be held "in the unit or units affected." In
contrast, BP 56 speci cally provides for a plebiscite "in the area or areas affected." In
fact, as previously stated, no question is raised herein as to the legality of the plebiscite
conducted. Thirdly, in the Tan case, even the requisite area for the creation of a new
province was not complied with in BP Blg. 885. No such issue in the creation of the new
municipality has been raised here. And lastly, "indecent haste" attended the enactment
of BP Blg. 885 and the holding of the plebiscite thereafter in the Tan case; on the other
hand, BP 56 creating the Municipality of Sibagat, was enacted in the normal course of
legislation, and the plebiscite was held within the period specified in that law.
WHEREFORE, the Petition is hereby dismissed. No costs.
SO ORDERED.
Teehankee, C .J ., Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr ., Paras, Feliciano,
Gancayco, Padilla and Bidin, JJ ., concur.

Separate Opinions
CRUZ, J ., concurring :

I concur on the assumption that the required plebiscite, although not questioned
here, nevertheless complied with Article XI, Section 3, of the 1973 Constitution, and was
duly held "in the unit or units affected," i.e., not only in the proposed municipality but
also in the mother municipality, in line with Tan v. Commission on Elections (142 SCRA
727), reversing Paredes v. Executive Secretary (128 SCRA 6) and Lopez v. Metro Manila
Commission (136 SCRA 633) insofar as these cases held that the plebiscite could be
confined only to the political unit proposed to be created.

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