G.R No. 188078

EN BANC

VICTORINO B. ALDABA, G.R No. 188078

CARLO JOLETTE S. FAJARDO,

JULIO G. MORADA, and Present:

MINERVA ALDABA MORADA,

Petitioners, PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

- versus - PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. January 25, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

CARPIO, J.:

The Case

This is an original action for Prohibition to declare unconstitutional Republic Act No. 9591 (RA 9591), creating a legislative district for the city of Malolos, Bulacan, for violating the minimum population requirement for the creation of a legislative district in a city.

Antecedents

Before 1 May 2009, the province of Bulacan was represented in Congress through four legislative districts. The First Legislative District comprised of the city of Malolos[1] and the municipalities of Hagonoy, Calumpit, Pulilan, Bulacan, and Paombong. On 1 May 2009, RA 9591 lapsed into law, amending Malolos’ City Charter,[2] by creating a separate legislative district for the city. At the time the legislative bills for RA 9591 were filed in Congress in 2007, namely, House Bill No. 3162 (later converted to House Bill No. 3693) and Senate Bill No. 1986, the population of Malolos City was 223,069. The population of Malolos City on 1 May 2009 is a contested fact but there is no dispute that House Bill No. 3693 relied on an undated certification issued by a Regional Director of the National Statistics Office (NSO) that “the projected population of the Municipality of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78 between 1995 to 2000.”[3]

Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition contending that RA 9591 is unconstitutional for failing to meet the minimum population threshold of 250,000 for a city to merit representation in Congress as provided under Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.

In its Comment to the petition, the Office of the Solicitor General (OSG) contended that Congress’ use of projected population is non-justiciable as it involves a determination on the “wisdom of the standard adopted by the legislature to determine compliance with [a constitutional requirement].”[4]

The Ruling of the Court

We grant the petition and declare RA 9591 unconstitutional for being violative of Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution

The 1987 Constitution requires that for a city to have a legislative district, the city must have “a population of at least two hundred fifty thousand.”[5] The only issue here is whether the City of Malolos has a population of at least 250,000, whether actual or projected, for the purpose of creating a legislative district for the City of Malolos in time for the 10 May 2010 elections. If not, then RA 9591 creating a legislative district in the City of Malolos is unconstitutional.

House Bill No. 3693 cites the undated Certification of Regional Director Alberto N. Miranda of Region III of the National Statistics Office (NSO) as authority that the population of the City of Malolos “will be 254,030 by the year 2010.” The Certification states that the population of “Malolos, Bulacan as of May 1, 2000 is 175,291.” The Certification further states that it was “issued upon the request of Mayor Danilo A. Domingo of the City of Malolos in connection with the proposed creation of Malolos City as a lone congressional district of the Province of Bulacan.”[6]

The Certification of Regional Director Miranda, which is based on demographic projections, is without legal effect because Regional Director Miranda has no basis and no authority to issue the Certification. The Certification is also void on its face because based on its own growth rate assumption, the population of Malolos will be less than 250,000 in the year 2010. In addition, intercensal demographic projections cannot be made for the entire year. In any event, a city whose population has increased to 250,000 is entitled to have a legislative district only in the “immediately following election”[7] after the attainment of the 250,000 population.

First, certifications on demographic projections can be issued only if such projections are declared official by the National Statistics Coordination Board (NSCB). Second, certifications based on demographic projections can be issued only by the NSO Administrator or his designated certifying officer. Third, intercensal population projections must be as of the middle of every year.

Section 6 of Executive Order No. 135[8] dated 6 November 1993 issued by President Fidel V. Ramos provides:

SECTION 6. Guidelines on the Issuance of Certification of Population sizes Pursuant to Section 7, 386, 442, 450, 452, and 461 of the New Local Government Code.

(a) The National Statistics Office shall issue certification on data that it has collected and processed as well as on statistics that it has estimated.

(b) For census years, certification on population size will be based on actual population census counts; while for the intercensal years, the certification will be made on the basis of a set of demographic projections or estimates declared official by the National Statistical Coordination Board (NSCB).

(c) Certification of population census counts will be made as of the census reference date, such as May 1, 1990, while those of intercensal population estimates will be as of middle of every year.

(d) Certification of population size based on projections may specify the range within which the true count is deemed likely to fall. The range will correspond to the official low and high population projections.

(e) The smallest geographic area for which a certification on population size may be issued will be the barangay for census population counts, and the city or municipality for intercensal estimates. If an LGU wants to conduct its own population census, during off–census years, approval must be sought from the NSCB and the conduct must be under the technical supervision of NSO from planning to data processing.

(f) Certifications of population size based on published census results shall be issued by the Provincial Census Officers or by the Regional Census Officers. Certifications based on projections or estimates, however, will be issued by the NSO Administrator or his designated certifying officer. (Emphasis supplied)

The Certification of Regional Director Miranda does not state that the demographic projections he certified have been declared official by the NSCB. The records of this case do not also show that the Certification of Regional Director Miranda is based on demographic projections declared official by the NSCB. The Certification, which states that the population of Malolos “will be 254,030 by the year 2010,” violates the requirement that intercensal demographic projections shall be “as of the middle of every year.” In addition, there is no showing that Regional Director Miranda has been designated by the NSO Administrator as a certifying officer for demographic projections in Region III. In the absence of such official designation, only the certification of the NSO Administrator can be given credence by this Court.

Moreover, the Certification states that “the total population of Malolos, Bulacan as of May 1, 2000 is 175,291.” The Certification also states that the population growth rate of Malolos is 3.78% per year between 1995 and 2000. Based on a growth rate of 3.78% per year, the population of Malolos of 175,291 in 2000 will grow to only 241,550 in 2010.

Also, the 2007 Census places the population of Malolos at 223,069 as of 1 August 2007.[9] Based on a growth rate of 3.78%, the population of Malolos will grow to only 248,365 as of 1 August 2010. Even if the growth rate is compounded yearly, the population of Malolos of 223,069 as of 1 August 2007 will grow to only 249,333 as of 1 August 2010.[10]

All these conflict with what the Certification states that the population of Malolos “will be 254,030 by the year 2010.” Based on the Certification’s own growth rate assumption, the population of Malolos will be less than 250,000 before the 10 May 2010 elections. Incidentally, the NSO has no published population projections for individual municipalities or cities but only for entire regions and provinces.[11]

Executive Order No. 135 cannot simply be brushed aside. The OSG, representing respondent Commission on Elections, invoked Executive Order No. 135 in its Comment, thus:

Here, based on the NSO projection, “the population of the Municipality of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78 between 1995-2000.” This projection issued by the authority of the NSO Administrator is recognized under Executive Order No. 135 (The Guidelines on the Issuance of Certification of Population Sizes), which states:

x x x

(f) Certifications of population size based on published census results shall be issued by the Provincial Census Officers or by the Regional Census Officers. Certifications based on projections or estimates, however, will be issued by the NSO Administrator or his designated certifying officer.[12] (Emphasis supplied)

Any population projection forming the basis for the creation of a legislative district must be based on an official and credible source. That is why the OSG cited Executive Order No. 135, otherwise the population projection would be unreliable or speculative.

Section 3 of the Ordinance appended to the 1987 Constitution provides:

Any province that may be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. xxx. (Emphasis supplied)

A city that has attained a population of 250,000 is entitled to a legislative district only in the “immediately following election.” In short, a city must first attain the 250,000 population, and thereafter, in the immediately following election, such city shall have a district representative. There is no showing in the present case that the City of Malolos has attained or will attain a population of 250,000, whether actual or projected, before the 10 May 2010 elections.

Clearly, there is no official record that the population of the City of Malolos will be at least 250,000, actual or projected, prior to the 10 May 2010 elections, the immediately following election after the supposed attainment of such population. Thus, the City of Malolos is not qualified to have a legislative district of its own under Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.

On the OSG’s contention that Congress’ choice of means to comply with the population requirement in the creation of a legislative district is non-justiciable, suffice it to say that questions calling for judicial determination of compliance with constitutional standards by other branches of the government are fundamentally justiciable. The resolution of such questions falls within the checking function of this Court under the 1987 Constitution to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[13]

Even under the 1935 Constitution, this Court had already ruled, “The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.”[14] Compliance with constitutional standards on the creation of legislative districts is important because the “aim of legislative apportionment is ‘to equalize population and voting power among districts.’”[15]

WHEREFORE, we GRANT the petition. We DECLARE Republic Act No. 9591 UNCONSTITUTIONAL for being violative of Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

RENATO C. CORONA

Associate 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 P. PEREZ

Associate Justice

JOSE C. MENDOZA

Associate Justice

CERTIFICATION

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

REYNATO S. PUNO

Chief Justice

[1] Under Section 57 of Republic Act No. 8754, the Charter of the City of Malolos.

[2] Id.

[3] Senate Journal, Session No. 49, 9 February 2009, Fourteenth Congress, p. 1557.

[4] Rollo, p. 64.

[5] Section 5(3), Article VI of the 1987 Constitution provides: “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.” (Emphasis supplied)

Moreover, Section 3 of the Ordinance appended to the 1987 Constitution provides: “Any province that may be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. xxx.” (Emphasis supplied)

[6] The Certification reads in full:

National Statistics Office

Region III

CERTIFICATION

To whom it may concern:

This is to certify that based on the 2000 census of population in housing census 2000 conducted by the National Statistics Office, the total population of Malolos, Bulacan as of May 1, 2000 is 175,291.

This is to certify that the results of the census 2000 were proclaimed and declared official by the President of the Philippines under Proclamation No. 28, dated April 18, 2001.

It is further certified that the projected population of the Municipality of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78 between 1995 to 2000. Please note that the computation was just based on the conventional method and not taking into account other factors that may affect the base population. Hence, the projected population may reach more than 250,000 in consideration of the other factors like future or past fertility, mortality, and migration within the locality for the year 2010.

This certification is issued upon the request of Mayor Danilo A. Domingo of the City of Malolos in connection with the proposed creation of Malolos City as a lone congressional district of the Province of Bulacan.

By authority of the Administrator

(Sgd) ALBERTO N. MIRANDA

Regional Director

[7] Section 3, Ordinance appended to the 1987 Constitution.

[8] Providing for the Establishment of a Well-Coordinated Local Level Statistical System.

[9] Annex “F” of Petition, which is a copy of the 2007 Census from the National Statistics Office.

[10] There is no basis to compound the growth rate of a population over a three-year period because the children born during the three-year period could not possibly give birth to their own children.

[11] http://www.census.gov.ph/data /sectordata/popproj _tab3r.html, accessed 22 December 2009.

[12] Rollo, p. 62.

[13] Section 1, Article VIII, Constitution.

[14] Macias v. Commission on Elections, G.R. No. L-18684, 14 September 1961, 3 SCRA 1.

[15] Bagabuyo v. Commission on Elections, G.R. No. 176970, 8 December 2008, 573 SCRA 290.