G.R. No. 189793           SEN. BENIGNO AQUINO III AND MAYOR JESSE ROBREDO, petitioners, v. COMMISSION ON ELECTIONS, respondent.

 

Promulgated:

 

April 7, 2010

 

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CONCURRING AND DISSENTING OPINION

 

 

CARPIO MORALES, J.

 

I concur with the ponencia’s discussion on the procedural issue.   

 

 “Transcendental importance” doctrine aside, petitioners have the requisite locus standi.  Petitioners are suing not only as lawmakers but as taxpayers and citizens as well.  At the initiative of a taxpayer, a statute may be nullified, on the supposition that expenditure of public funds for the purpose of administering an unconstitutional act constitutes a misapplication of such funds.[1]  Republic Act No. 9716 (R.A. 9716) mandates the creation of another legislative district and indubitably involves the expenditure of public funds.          

 

I DISSENT, however, on the ponencia’s conclusion, on the substantive issue, that a population of 250,000 is not an indispensable constitutional requirement for the creation of a new legislative district in a province.

 

 

 

Contrary to the ponencia’s assertion, petitioners do not merely rely on Article VI, Section 5 (3) but also on Section 5 (1) of the same Article. [2] Both provisions must be read together in light of the constitutional requirements of population and contiguity. 

 

Section 5 (3) of Article VI disregards the 250,000 population requirement only with respect to existing provinces whose population does not exceed 250,000 or to newly created provinces under the Local Government Code (as long as the income and territory requirements are met). 

 

The ponencia misinterprets Mariano v. Comelec.[3]   The actual population of the City of Makati during the Senate deliberations in 1994 on House Bill (H.B.) No. 4264 that was to be enacted into R.A. No. 7854 was 508,174.[4]    That is why the Court in Mariano declared:

 

                        Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with Section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000).  Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative.  Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000).  In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.[5]  (emphasis in the original)

 

 

Nothing in Mariano reflects that the Court disregarded the 250,000 population requirement as it merely stated that Makati’s legislative district may still be increased as long as the minimum population requirement is met.  The permissive declaration at that time presupposes that Makati must still meet the constitutional requirements before it can have another congressional district.     

 

The Local Government Code likewise is not in point since Section 461 thereof tackles the creation of a province and not the reapportioning of a legislative district based on increasing population.  There is thus no point in asserting that population is merely an alternative addition to the income requirement.    

 

The ponencia likewise misinterprets Bagabuyo v. Comelec.[6]  Notably, the ponencia spliced that portion of the decision in Bagabuyo which it cited to suit its argument.   Thus the ponencia quotes:

 

x x x  Undeniably, these figures show a disparity in the population sizes of the districts.  The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory.  (emphasis and underscoring in the original by the ponente)

 

 

It omitted that portion which specified the respective total population of the two districts as above 250,000.  Thus the full text of the pertinent portion of the decision reads:

 

The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City.  However, we take judicial notice of the August 2007 census of the National Statistics

 

Office which shows that barangays comprising Cagayan de Oro’s first district have a total population of 254,644 while the second district has 299,322 residents.  Undeniably, these figures show a disparity in the population sizes of the districts.  The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x (emphasis and underscoring supplied)

             

The two legislative districts of Cagayan de Oro subject of Bagabuyo met the minimum population requirement at the time of reappportionment.  The ponencia’s construal of the disparity in population sizes of the districts involved in Bagabuyo clearly differs from the disparity of population in the present case.      

 

The Record of the Constitutional Commission itself declares that the 250,000 benchmark was used in apportioning the legislative districts in the country.  The sponsorship speech of Commissioner Hilario Davide, Jr.[7] reflects so.

 

x x x x.  Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.  Each city or each province with a population of at least 250,000 shall have at least one Representative.  This is Section 5 of the Article on the Legislative.  x x x x  The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among the provinces and cities with a population of at least 250,000 and the Metropolitan Manila area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio.  The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning.  This projection indicates that our population is more or less 56 million.  Taking into account the mandate that each city with at least 250,000 inhabitants and each province shall have at least one representative, we at first allotted one seat for each of the 73 provinces; and one each for all cities with a population of at least 250,000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga.  Thereafter, we

 

 

then proceeded to increase whenever appropriate the number of seats for the provinces and cities in accordance with number of their inhabitants on the basis of a uniform and progressive ratio.       x x x x.   (capitalization, emphasis, italics and underscoring supplied)

 

 

The framers of the Constitution intended to apply the minimum population requirement of 250,000 to both cities and provinces in the initial apportionment, in proportion to the country’s total population at that time (56 million). 

 

Yet the ponencia asserts that the 250,000 benchmark was used only for the purpose of the 1986 initial apportionment of the legislative districts, and now disregards the benchmark’s application in the present petition.  It is eerily silent, however, on what the present population yardstick is.  If the present estimated population of 90 million is to be the dividend,[8] then there would roughly be one legislative district representative for every 450,000. 

 

Following the constitutional mandate, the population requirement cannot fall below 250,000.  This is the average “uniform and progressive ratio” that should prevail.  Thus, using the present population figure, the benchmark should be anywhere between 250,000-450,000 persons per district.  Using anything less than 250,000 is illogical, for it would operate to allow more than 360 representatives of legislative districts alone on some capricious basis other than the variable of population.       

 

A case in point is the congressional reapportionment done in the provinces of Sultan Kudarat and Zamboanga Sibugay effected through
Republic Act No. 9357[9] and Republic Act No. 9360,[10] respectively.  At the time of the congressional deliberations and effectivity of these laws, the population count in these provinces more than met the basic standard.  Sultan Kudarat already had a population of 522,187 during the 1995 census year,[11] while Zamboanga Sibugay met the population threshold in 2001 with an estimated 503,700 headcount.[12]  

 

The ponencia sweepingly declares that “population was explicitly removed as a factor.”[13]  Far from it.  Population remains the controlling factor.  From the discussions in the initial apportionment and districting of Puerto Princesa, Baguio, Cavite, Laguna, Maguindanao and Cebu in 1986, it is clear that population and contiguity were the primary considerations, and the extraneous factors considered were circumspectly subsumed thereto.        

 

The ponencia harps on petitioners’ admission that Camarines Sur is actually entitled to SIX legislative districts, given its population of 1,693,821, to justify its conclusion that there is nothing wrong in the creation of another legislative district in the province.  This is a wrong premise.  It bears noting that petitioners raised the legislative entitlement to underscore the GRAVE ABUSE OF DISCRETION committed in the enactment of R.A. 9716. 

 

R.A. 9716 created one legislative district by reconfiguring the first and second districts.  It did not, however, touch the third and fourth districts which, when properly reapportioned, can easily form another district.  No reasons were offered except Senator Joker Arroyo’s during the Senate Plenary Debates on H.B. No. 4264, viz: “When it comes to their district, congressmen are kings. We cannot touch them. He [referring to Rep. Villafuerte] does not also want it [referring to the district of Rep. Villafuerte] touched... even if they have a pregnant populace or inhabitants, he does not want it touched.”[14]

 

The resulting population distribution in the present case violates the uniform and progressive ratio prescribed in the Constitution.   

 

Prior to the enactment of R.A. No. 9716, the tally of population percentage per district in Camarines Sur based on its population of 1,693,821 was as follows: 

 

District 1: 24.6%

District 2: 28.03%

                   District 3: 21.99%

                   District 4: 25.33%

         

 

Compare now the population percentage per district after the passage of R.A. 9716: 

 

District 1: 10.4%

District 2: 16.34%

                   District 3: 25.9%

                   District 4: 21.99%  (former District 3)

                   District 5: 25.33%  (former District 4)

         

 

Remarkably, before R.A. No. 9716, the first district met the 250,000 minimum.  After R.A. No. 9716, it suffered a very significant drop in its population from 416,680 to 176,157.

                               

The extraneous factors[15] cited  by the ponencia do not suffice to justify the redistricting, particularly the inclusion of the municipality of Libmanan in the second district.  Linguistic difference is a weak basis to segregate the municipalities in the redistricting.  To sanction that as basis would see a wholesale redistricting of the entire country, given the hundreds of dialects being spoken.  Imagine Binondo being segregated from the Tagalog-speaking district of Tondo or Sta. Cruz in Manila on the ground that Fookien is largely spoken in Binondo.          

 

The former first district supposedly occupied 40% of the total land area of Camarines Sur.  But the former fourth district (which is now the fifth) comprises the same percentage of land area, if not bigger.  If land area was a factor, then the former fourth district should have been re-districted also since it is endowed with a big area like the former first district. 

 

The municipality of Libmanan is supposedly isolated by a body of water from the first district.  But so is the municipality of Cabusao which is situated northeast of Libmanan and which is bordered by the same body of water.  Yet Cabusao is part of the new first district.  Considering the similar geographical location of the two municipalities, there is no compelling reason to segregate Libmanan from the first district and tack it to the newly created second district.

 

The seminal case of Reynolds v. Sims[16] had already ruled that these factors cannot be permissively considered in legislative reapportionment.

 

x x x Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.  x x x  [We] hold that, as a basic constitutional standard, [equal protection] requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.  Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the [State]. 

 

x x x x

 

[Equal protection] requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.  We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, citizens, or voters.  Mathematical exactness or precision is hardly a workable constitutional requirement.  So long as the divergences from a strict population principle are constitutionally permissible, but neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation.  Citizens, not history or economic interests, cast votes.  Considerations of area alone provide an insufficient justification for deviations from the equal-population principle.  Again, people, not land or trees or pastures, vote.  x x x (emphasis and underscoring supplied)

 

Undoubtedly, Camarines Sur’s malapportionment largely partakes of gerrymandering.[17]    

 

A final word.  By pronouncing that “other factors,” aside from population, should be considered in the composition of additional districts, thereby adding other requisites despite the Constitution’s clear limitation to population and contiguity, the ponencia effectively opens the floodgates to opportunistic lawmakers to reconfigure their own principalia and bantam districts.  Leaving open Section 5 of Article VI to arbitrary factors, such as economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-for-all.                

 

 

 

 

 

 

In light of the foregoing, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL Republic Act No. 9716.

 

 

 

  CONCHITA CARPIO MORALES

    Associate Justice

 

 

         


[1]               Pascual v. Secretary of Public Works, 110 Phil. 331, 342-343 (1960).

[2]               Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. 

(2)     x x x x

(3)     Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.  Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. 

[3]               312 Phil. 259 (1995).

[4]               Id. at 272 at footnote 13 which reads: As per the certificate issued by Administrator Tomas Africa of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508, 174 x x x.

[5]               Id. at 272-273.

[6]               573 SCRA 290 (2008).

[7]               Record of the Constitutional Commission, Vol. V, p. 949. 

[8]               As of August 2007, the official population was 88,574,614 Filipinos.  The population count was made official with the signing by President Gloria Macapagal-Arroyo of Proclamation No. 1498 on April 16, 2008.

[9]               Entitled “An Act Reapportioning the Province of Sultan Kudarat into Two Legislative Districts” and passed on October 10, 2006. 

[10]             Entitled “An Act Creating Another Congressional District In The Province of Zamboanga Sibugay, Amending For The Purpose [Ra No. 8973], Otherwise Known As The Charter Of The Province Of Zamboanga Sibugay” and passed on July 24, 2006. 

[12]             http://www.census.gov.ph/data/census2007/index.html.  Last visited March 30, 2010.  Zamboanga Sibugay’s population during the 2000 Census was at 497,239 with an annual growth rate of 1.30%.  Thus, the following year (2001), the province met the 500,000 minimum requirement.

[13]             Decision, p. 20.

[14]             TSN, Senate Plenary Debates, H.B. 4264, September 22, 2009..

[15]             Decision, p. 23.  These are dialects spoken, size of the original groupings, natural division of the Municipality of Libmanan from the reconfigured first district and the balancing of the areas of the first three districts.  

[16]             377 U.S. 533 (1964).

[17]             A name given to the process of dividing a state or other territory into the authorized civil or political divisions, but with such a geographical arrangement as to accomplish an ulterior or unlawful purpose, as, for instance, to secure a majority for a given political party in districts where the result would be otherwise if they were divided according to obvious natural lines. (Black’s Law Dictionary, 5th Ed., p. 618).