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provided in the Constitution. The Court answered in the negative, Thus, the Court sustained the constitutionality of RA 4695
thus: because (1) it validly created legislative districts indirectly through
The Constitution ordains: a special law enacted by Congress creating a province and (2)
The House of Representatives shall be composed of not more the creation of the legislative districts will not result in breaching the
than one hundred and twenty Members who shall be apportioned maximum number of legislative districts provided under the 1935
among the several provinces as nearly as may be according to the Constitution. Felwa does not apply to the present case because
number of their respective inhabitants, but each province shall in Felwa the new provinces were created by a national law enacted
have at least one Member. The Congress shall by law make an by Congress itself. Here, the new province was created merely by
apportionment within three years after the return of every a regional law enacted by the ARMM Regional Assembly.
enumeration, and not otherwise. Until such apportionment shall What Felwa teaches is that the creation of a legislative district by
have been made, the House of Representatives shall have the same Congress does not emanate alone from Congress power to reapportion
number of Members as that fixed by law for the National legislative districts, but also from Congress power to create provinces
Assembly, who shall be elected by the qualified electors from the which cannot be created without a legislative district. Thus, when a
present Assembly districts. Each representative district shall province is created, a legislative district is created by operation of
comprise as far as practicable, contiguous and compact territory. the Constitution because the Constitution provides that each
Pursuant to this Section, a representative district may come into province shall have at least one representative in the House of
existence: (a) indirectly, through the creation of a provincefor Representatives. This does not detract from the constitutional
each province shall have at least one member in the House of principle that the power to create legislative districts belongs
Representatives; or (b) by direct creation of several
exclusively to Congress. It merely prevents any other legislative body,
representative districts within a province. The requirements
except Congress, from creating provinces because for a legislative
concerning the apportionment of representative districts and the
body to create a prov-
territory thereof refer only to the second method of creation of
_______________
representative districts, and do not apply to those incidental to the
32 Supra note 13 at pp. 1235-1236.
creation of provinces, under the first method. This is deducible, not only
739
from the general tenor of the provision above quoted, but, also, from the
fact that the apportionment therein alluded to refers to that which is VOL. 558, JULY 16, 2008 739
made by an Act of Congress. Indeed, when a province is created by Sema vs. Commission on Elections
statute, the corresponding representative district, comes into ince such legislative body must have the power to create legislative
existence neither by authority of that statute739 districts. In short, only an act of Congress can trigger the creation of
VOL. 558, JULY 16, 2008 739 a legislative district by operation of the Constitution. Thus, only
Sema vs. Commission on Elections Congress has the power to create, or trigger the creation of, a
which cannot provide otherwisenor by apportionment, but by legislative district.
operation of the Constitution, without a reapportionment. Moreover, if as Sema claims MMA Act 201 apportioned a
There is no constitutional limitation as to the time when, territory of, legislative district to Shariff Kabunsuan upon its creation, this will
or other conditions under which a province may be created, except, leave Cotabato City as the lone component of the first legislative
perhaps, if the consequence thereof were to exceed the maximum of 120 district of Maguindanao. However, Cotabato City cannot constitute a
legislative district by itself because as of the census taken in 2000, it The following exchange during the oral arguments of the petition
had a population of only 163,849. To constitute Cotabato City alone in G.R. No. 177597 highlights the absurdity of Semas position that
as the surviving first legislative district of Maguindanao will violate the ARMM Regional Assembly can create provinces:
Section 5 (3), Article VI of the Constitution which requires that Justice Carpio:
[E]ach city with a population of at least two hundred fifty thousand So, you mean to say [a] Local Government can create legislative district[s] and pack
Congress with their own representatives [?]
x x x, shall have at least one representative. Atty. Vistan II: 35
Second. Semas theory also undermines the composition and Yes, Your Honor, because the Constitution allows that.
independence of the House of Representatives. Under Section _______________
Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of
19,33 Article VI of RA 9054, the ARMM Regional Assembly can create the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.
provinces and cities within the ARMM with or without regard to the (b) The territory need not be contiguous if it comprise two (2) or more islands or is separated by a chartered city or cities
which do not contribute to the income of the province.
criteria fixed in Section 461 of RA 7160, namely: minimum annual (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust
funds, transfers and non-recurring income.
income of P20,000,000, and minimum contiguous territory of 2,000 35 Atty. Edgardo Carlos B. Vistan II, counsel for petitioner in G.R. No. 177597.
scenarios thus become distinct possibilities: VOL. 558, JULY 16, 2008 741
_______________ Sema vs. Commission on Elections
33 See note 3. Justice Carpio:
34 Section 461 provides: Requisites for Creation.(a)A province may be created if it So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x
has an average annual income, as certified by the Department of Finance, of not less than and, therefore, they can have thirty-five (35) new representatives in the House of
Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the Representatives without Congress agreeing to it, is that what you are saying? That
following requisites: can be done, under your theory[?]
(i) a contiguous territory of at least two thousand (2,000) square kilometers, Atty. Vistan II:
as certified by the Lands Management Bureau; or Yes, Your Honor, under the correct factual circumstances.
(ii) a population of not less than two hundred fifty thousand (250,000) Justice Carpio:
inhabitants as certified by the National Under your theory, the ARMM legislature can create thirty-five (35) new provinces,
740 there may be x x x [only] one hundred thousand (100,000) [population], x x x, and
they will each have one representative x x x to Congress without any national law,
740 SUPREME COURT REPORTS ANNOTATED is that what you are saying?
Sema vs. Commission on Elections Atty. Vistan II:
Without law passed by Congress, yes, Your Honor, that is what we are saying.
(1) An inferior legislative body like the ARMM Regional Assembly
xxxx
can create 100 or more provinces and thus increase the membership of a Justice Carpio:
superior legislative body, the House of Representatives, beyond the So, they can also create one thousand (1000) new provinces, sen[d] one
maximum limit of 250 fixed in the Constitution (unless a national law thousand (1000) representatives to the House of Representatives without
provides otherwise); a national law[,] that is legally possible, correct?
Atty. Vistan II:
(2) The proportional representation in the House of Representatives
Yes, Your Honor. (Emphasis supplied)
36
Honorable Commissioners, we wish to impress upon you the VOL. 558, JULY 16, 2008 757
gravity of the decision to be made by every single one of us in this Sema vs. Commission on Elections
Commission. We have the overwhelming support of the 756
negotiated with care by the Philippine Government with the leading
756 SUPREME COURT REPORTS ANNOTATED armed insurgency group in Muslim Mindanao towards the higher
Sema vs. Commission on Elections purpose of providing a permanent peace agreement in the strife-torn
Bangsa Moro and the Cordillera Constitution. By this we mean region. It does come with a measure of surprise and disappointment
meaningful and authentic regional autonomy. We propose that we that the Solicitor General has reached a position that rejects the Final
have a separate Article on the autonomous regions for the Bangsa Peace Agreement negotiated by the Government and the MNLF.
Moro and Cordillera people clearly spelled out in this Constitution, Disomangcop further crystallizes the interplay between regional
instead of prolonging the agony of their vigil and their struggle. autonomy and national sovereignty, to the extent that the former is
This, too is a plea for national peace. Let us not pass the buck to accommodated under the latter.
the Congress to decide on this. Let us not wash our hands of our
Regional autonomy is the degree of self-determination exercised by
responsibility to attain national unity and peace and to settle this the local government unit vis--vis the central government.
problem and rectify past injustices, once and for all.
In international law, the right to self-determination need not be
The need for regional autonomy is more pressing in the case of the
understood as a right to political separation, but rather as a complex net
Filipino Muslims and the Cordillera people who have been fighting for it.
of legal-political relations between a certain people and the state
Their political struggle highlights their unique cultures and the
authorities. It ensures the right of peoples to the necessary level of
unresponsiveness of the unitary system to their aspirations. The Moros
autonomy that would guarantee the support of their own cultural
struggle for self-determination dates as far back as the Spanish conquest
identity, the establishment of priorities by the communitys internal
in the Philippines. Even at present, the struggle goes on. decision-making processes and the management of collective matters by
Perforce, regional autonomy is also a means towards solving existing themselves.
serious peace and order problems and secessionist movements.
If self-determination is viewed as an end in itself reflecting a
Parenthetically, autonomy, decentralization and regionalization, in
preference for homogeneous, independent nation-states, it is incapable of
international law, have become politically acceptable answers to
universal application without massive disruption. However, if self-
intractable problems of nationalism, separatism, ethnic conflict and
determination is viewed as a means to an endthat end being a
threat of secession.
25
democratic, participatory political and economic system in which the
Petitioner Sema points out that among the terms in the Final rights of individuals and the identity of minority communities are
Peace Agreement between the Philippine Government and the Moro protectedits continuing validity is more easily perceived.
National Liberation Front was that amendments be introduced to the Regional autonomy refers to the granting of basic internal
original Organic Act, including one which authorized the Assembly to government powers to the people of a particular area or region with least
create, divide, merge, abolish or substantially alter boundaries of control and supervision from the central government.
local government units in the area of autonomy in accordance with The objective of the autonomy system is to permit determined groups,
the criteria laid down by law subject to approval by a majority of the with a common tradition and shared social-cultural characteristics, to
votes cast in a plebiscite called for the purpose in the political units develop freely their ways of life and heritage, exercise their rights, and
affected.26 Indeed, it could hardly be argued that the challenged be in charge of their own business. This is achieved through the
establishment of a special governance regime for certain member Rather than give opportunity to foreign bodies, no matter how
communities who choose their own authorities from within the sympathetic to the Philippines, to contribute to the settlement of this
community and exercise the jurisdictional authority legally accorded to issue, I think the Constitutional Commission ought not to forego the
them to decide internal community affairs.758 opportunity to put the stamp of this Commission through definitive
758 SUPREME COURT REPORTS ANNOTATED action on the settlement of the problems that have nagged us and our
forefathers for so long. 27
exclusively to Congress. But to say that the Constitution confines to It bears reemphasizing that the Constitution also actualizes a
Congress alone the power to establish the criteria for creating preference for local government rule, and thusly provides:
provinces is vastly different from saying that the Constitution _______________
confines to Congress alone the power to create provinces. There is 33 Id., at p. 17.
nothing in the Constitution that supports the latter proposition. 34 Supra note 23, at p. 227.
764
Section 10, Article X does not specifically designate Congress as the
body with the power to create provinces. As earlier stated, the power 764 SUPREME COURT REPORTS ANNOTATED
to create these political subdivisions is part of the plenary legislative Sema vs. Commission on Elections
power, hence such power can be exercised by Congress even without The Congress shall enact a local government code which shall provide
need of specific constitu-763 for a more responsive and accountable local government
VOL. 558, JULY 16, 2008 763 structure instituted through a system of decentralization with
effective mechanisms of recall, initiative, and referendum, allocate
Sema vs. Commission on Elections
among the different local government units their powers,
tional assignation. At the same time, the absence of constitutional responsibilities, and resources, and provide for the
language committing Congress with the function of creating political qualifications, election, appointment and removal, term, salaries,
subdivisions ultimately denotes that such legislative function may be powers and functions and duties of local officials, and all other
delegated by Congress. matters relating to the organization and operation of the local
In fact, the majority actually concedes that Congress, under its units. 35
plenary legislative powers, can delegate to local legislative bodies the Attuned with enhanced local government rule, Congress
power to create local government units, subject to reasonable had, through Rep. Act No. 9054, taken the bold step of
standards and provided no conflict arises with any provision of the delegating to a local legislative assembly the power to create
Constitution.33 As is pointed out, such delegation is operationalized provinces, albeit prudently withholding any ability to create
by the LGC itself, which confers to provincial boards and city and legislative districts as well. Section 19 of Rep. Act No. 9054 reads:
municipal councils, the general power to create barangays within Section 19. Creation, Division or Abolition of Provinces, Cities,
their respective jurisdictions. The Constitution does not confine the Municipalities or Barangay.The Regional Assembly may create, divide,
exercise of such powers only to the national legislature, and indeed if merge, abolish, or substantially alter boundaries of provinces, cities,
that were the case, the power to create barangays as granted by the municipalities, or barangays in accordance with the criteria laid down by
LGC to local legislative bodies would be unconstitutional. the Republic Act No. 7160, the Local Government Code of 1991, subject
Traditionally, it has been the national legislature which has to the approval by the majority of the votes cast in the plebiscite in the
exercised the power to create provinces. However, the 1987 political units directly affected. The Regional Assembly may prescribe
Constitution ushered in a new era in devolved local government rule, standards lower than those mandated by Republic Act No. 7160, the Local
Government Code of 1991, in the creation, division, merger, abolition, or
and particularly, a regime of local autonomy for Muslim Mindanao
alteration of the boundaries of provinces, cities, municipalities, or
and the Cordilleras. We recognized in Disomangcop v. Datumanong,
barangay. Provinces, cities, municipalities, or barangays created,
thus:
divided, merged, or whose boundaries are altered without observing the
Autonomy, as a national policy, recognizes the wholeness of the standards prescribed by Republic Act No. 7160, the Local Government
Philippine society in its ethnolinguistic, cultural, and even religious Code of 1991, shall not be entitled to any share of the taxes that are
diversities. It strives to free Philippine society of the strain and wastage allotted to the local governments units under the provisions of the code.
The financial requirements of the provinces, cities and municipalities, 766 SUPREME COURT REPORTS ANNOTATED
or barangays so created, divided, merged shall be provided by the
Sema vs. Commission on Elections
Regional Assembly out of the general funds of the Regional Government.
_______________ tion or by law to the autonomous regions shall be vested in the
35 Const., Art. X, Sec. 3. National Government. The original Organic Act for Muslim
765 Mindanao did not grant to the regional government the power to
VOL. 558, JULY 16, 2008 765 create provinces, thus at that point, such power was properly
exercised by the National Government. But the subsequent passage
Sema vs. Commission on Elections
of Rep. Act No. 9054 granted to the Regional Assembly the power,
The holding of a plebiscite to determine the will of the majority of the
function and responsibility to create provinces and other local
voters of the areas affected by the creation, division, merger, or whose
government units which had been exercised by the National
boundaries are being altered as required by Republic Act No. 7160, the
Government.
Local Government Code of 1991, shall, however, be observed.
The majority does not point to any specific constitutional
Because this empowerment scheme is in line with a policy
prohibition barring Congress from delegating to the Regional
preferred by the Constitution, it becomes utterly necessary to pinpoint
Assembly the power to create provinces. It does cite though that
a specific constitutional prohibition that bars Congress from
Article 460 of the LGC provides that only by an Act of Congress may
authorizing the Regional Assembly to create provinces. No such
a province be created, divided, merged, abolished or its boundary
constitutional limitation exists, and it is not the province,
substantially altered. However, Republic Act No. 9054, which was
duty or sensible recourse of this Court to nullify an act of
passed ten (10) years after the LGC, unequivocally granted to the
Government in furtherance of a constitutional mandate and
ARMM Regional Assembly the power to create provinces, cities,
directly ratified by the affected people if nothing in the
municipalities and barangays within the ARMM.
Constitution proscribes such act.
Any argument that the LGC confines to Congress the creation of
The constitutionality of the delegated power of the Regional
provinces is muted by the fact that ten years after the LGC was
Assembly to create provinces is further affirmed by the provisions in
enacted by Congress, the same legislative body conferred on the
the Constitution concerning the mandatory creation of autonomous
Assembly that same power within its territorial jurisdiction, thus
regions in Muslim Mindanao, as found in Sections 15 to 21, Article X.
amending the LGC to the extent of accommodating these newly-
The organic act enacted by Congress for the autonomous region is to
granted powers to the Assembly.
define the basic structure of government.36 Section 20 specifically
allows the organic act of autonomous regions to provide for legislative There actually is an obvious unconstitutional dimension to Section
powers over, among others, administrative organization; creation of 19, albeit one which is not in point in this case. The provision states
sources of revenues; economic, social and tourism development; and in part [t]hat Regional Assembly may prescribe standards lower than
such other matters as may be authorized by law for the promotion of those mandated by Republic Act No. 7160, the Local Government
the general welfare of the people of the region. The creation of Code of 1991, in the creation, division, merger, abolition, or alteration
provinces within the autonomous region precisely assists these of the boundaries of provinces, cities, municipalities, or barangays.
constitutional aims under Section 20, enhancing as it does the basic That proviso is squarely inconsistent with Section 10, Article X, which
administration of government, the delivery of government services, accords to the LGC the sole criteria for the creation, division, merger,
and the promotion of the local economy. abolition or alteration of boundaries of local government units. Said
proviso thus cannot receive recognition from this Court.767
In addition, Section 17, Article X states that [a]ll powers,
functions, and responsibilities not granted by this Constitu- VOL. 558, JULY 16, 2008 767
_______________ Sema vs. Commission on Elections
36 Const., Art. X, Sec. 18.
766
It bears noting that there is no contention presented thus far that parameters set forth by the Constitution, such act may be invalidated
the creation of Shariff Kabunsuan was not in accordance with the by the Court, as it did in Macias v. COMELEC.40
criteria established in the LGC, thus this aspect of unconstitutionality There is another constitutional provision which is of critical
of Rep. Act No. 9054 may not be material to the petitions at bar. importance in considering limitations in the creation of legislative
VI. districts. Section 5(1), Article VI states that [t]he House of
The majority unfortunately asserts that Congress may not Representatives shall be composed of not more than two
delegate to the Regional Assembly the power to create provinces, hundred fifty members, unless otherwise fixed by law. The
despite the absence of any constitutional bar in that respect. The provision textually commits that only through a law may the
reasons offered for such conclusion are actually the same reasons it numerical composition of Congress may be increased or reduced.
submits why the Regional Assembly could not create legislative The Court has previously recognized that such law increasing the
districts, as if the power to create provinces and the power to create membership of the House of Representatives need not be one
legislative districts were one and the same. In contrast, I propose to specifically devoted for that purpose alone, but it may be one that
pinpoint a specific constitutional provision that prohibits the Regional creates a province or charters a city with a population of more than
Assembly from creating, directly or indirectly, any legislative district 250,000. In Tobias v. Abalos,41 the Court pronounced that the law
without affecting that bodys delegated authority to create provinces. converting Mandaluyong into a city could likewise serve the purpose
Let us review this issue as presented before us. Notably, Republic of increasing the composition of the House of Representatives:
Act No. 9054 does not empower the Regional Assembly to create As to the contention that the assailed law violates the present limit
legislative districts, and MMA Act No. 201, which created Shariff on the number of representatives as set forth in the Constitution, a
Kabunsuan, specifically disavows the creation of a new district for reading of the applicable provision, Article VI, Section 5 (1), as
that province and maintains the old legislative district shared with aforequoted, shows that the present limit of 250 members is not
Cotabato City. It is the thesis though of the petitioners that _______________
38 See Const., Art. VI, Sec. 5(1).
following Felwa v. Salas,37 the creation of the new province ipso
39 See Mariano v. Commission on Elections, G.R. Nos. 118577 & 118627, 7 March 1995, 242
facto established as well an exclusive legislative district for Shariff SCRA 211, 217.
Kabunsuan, by operation of the Constitution. 40 113 Phil. 1; 3 SCRA 1 (1961).
How exactly does a legislative district come into being? In theory, 41 G.R. No. 114783, 8 December 1994, 239 SCRA 106.
in exercising this limited power through the constitutionally This point was reemphasized by the Court in Mariano v.
mandated reapportionment, Congress cannot substitute its own COMELEC:43
discretion for the standards set forth in Section 5, Article VI. And These issues have been laid to rest in the recent case of Tobias v.
should general reapportionment made by Congress violate the Abalos. In said case, we ruled that reapportionment of legislative districts
may be made through a special law, such as in the charter of a new city. powers; the prescription of a system for initiative and referendum; the
The Constitution clearly provides that Congress shall be composed of not salaries of the President and Vice-President; and the creation and
more than two hundred fifty (250) members, unless otherwise fixed by allocation of jurisdiction of lower courts.
law. As thus worded, the Constitution did not preclude Congress from Considering that all these matters, including the composition of
increasing its membership by passing a law, other than a general
the House of Representatives, are of national interest, it is but
reapportionment law. This is exactly what was done by Congress in
constitutionally proper that only a national legislature has the
enacting R.A. No. 7854 and providing for an increase in Makatis
competence to exercise these powers. And the Constitution does
legislative district.44