EN BANC

 

 

G.R. No. 188078 -- VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA and MINERVA ALDABA MORADA, Petitioners, versus COMMISSION ON ELECTIONS, Respondent.

 

Promulgated:

January 25, 2010

 

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DISSENTING OPINION

 

ABAD, J.:

 

 

This case is about a law that establishes a new legislative district based on a projected population of the National Statistics Office (NSO) to meet the population requirement of the Constitution in the reapportionment of legislative districts.

 

The Facts and the Case

 

The City of Malolos and the Municipalities of Hagonoy, Calumpit, Pulilan, Bulacan, and Paombong comprise the current first district of the province of Bulacan. In 2007 the population of Malolos City was 223,069. The NSO projected that, using the established population growth rate of 3.78 percent between 1995 and 2000, its population in 2010 will be 254,030.

 

On May 1, 2009 Congress enacted Republic Act (R.A.) 9591, to amend Section 57 of R.A. 8754, the charter of the City of Malolos, making the city a separate district from the existing first legislative district of Bulacan.

 

The Challenge

 

On June 16, 2009 petitioners Victorino Aldaba, Carlo Jolette S. Fajardo, Julio G. Morada, and Minerva Aldaba Morada, all claiming to be taxpayers from Malolos City, filed the present action, assailing the constitutionality of R.A. 9591. They point out a) that the law failed to comply with the requirement of Section 5(4), Article VI of the 1987 Constitution that a city must have a population of at least 250,000; (2) that the creation of a separate district amounts to a conversion and requires the conduct of a plebiscite; and (3) that the law violates Section 5(3), Article VI which provides that each district shall comprise as far as practicable, contiguous, compact and adjacent territory.

 

The Dissenting View

 

First. Section 5, paragraphs (3) and (4), Article VI of the 1987 Constitution reads:

 

(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.

 

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

 

For a city to merit one representative it should have a population of at least 250,000. A province, however, is entitled to one representative no matter what its population size. In this case, the basis of House Bill 3696 is the certification of the NSO that the projected population of the City of Malolos by 2010, the coming election year, will be 254,030. Thus, said the NSO:

 

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[1]

 

I cannot agree with petitioners claim that the Congress gravely abused its discretion in relying on the 2010 projected population of Malolos City as basis for its reapportionment law. The Court has always been reluctant to act like a third chamber of Congress and second guess its work. Only when the lawmakers commit grave abuse of discretion in their passage of the law can the Court step in. But the lawmakers must not only abuse this discretion, they must do so with grave consequences.[2]

 

Here, nothing in Section 5, Article VI of the Constitution prohibits the use of estimates or population projections in the creation of legislative districts. As argued by the Solicitor General, the standard to be adopted in determining compliance with the population requirement involves a political question. In the absence of grave abuse of discretion or patent violation of established legal parameters, the Court cannot intrude into the wisdom of the standard adopted by the legislature.

 

In fact, in Macias v. Commission on Elections,[3] the Court upheld the validity of a reapportionment law based on the NSOs preliminary count of population which may be subject to revision. The Court held there that although not final, and still subject to correction, a census enumeration may be considered official, in the sense that Governmental action may be based thereon even in matters of apportionment of legislative districts.

 

Majority opinion ably written by Justice Antonio T. Carpio points out, however, that no legal effect can be accorded to the certification of demographic projection for Malolos City issued by the NSO Region III Director because it violates the provisions of Executive Order 135 dated November 6, 1993 of President Fidel V. Ramos, which requires that such demographic projection be declared official by the National Statistics Coordination Board and that the certification be issued by the NSO administrator or a designated officer. In addition, the intercensal population estimates must, according to the Executive Order, be as of middle of every year.

 

But Executive Order 135 cannot apply to this case for the following reasons:

 

a. The President issued Executive Order 135 specifically to provide guidelines on the issuance of Certification of Population sizes pursuant to the following provisions of the Local Government Code: Section 7 (the creation and conversion of local government units); Section 386 (the creation of a barangay), Section 442 (the creation of a municipality); Section 450 (the conversion of a municipality or a cluster of barangay into a component city); Section 452 (the creation of highly urbanized cities); and Section 461 (the creation of urbanized cities).

 

Since R.A. 9591 is not concerned with the creation or conversion of a local government unit but with the establishment of a new legislative district, which is by no means a local government unit, the same is not governed by the requirements of Executive Order 135.

 

b. R.A. 9591 is based on a legislative finding of fact that Malolos will have a population of over 250,000 by the year 2010. The rules of legislative inquiry or investigation are unique to each house of Congress. Neither the Supreme Court nor the Executive Department can dictate on Congress the kind of evidence that will satisfy its law-making requirement. It would be foolhardy for the Court to suggest that the legislature consider only evidence admissible in a court of law or under the rules passed by the Office of the President. Obviously, the Judicial Department will resist a mandate from Congress on what evidence its courts may receive to support its decisions.

 

c. At any rate, the certification issued by the NSO Region III Director, whose office has jurisdiction over Malolos City, partakes of official information based on official data. That Malolos had a population of 175,291 as of May 1, 2000 is, as the certification states, based on the 2000 census of population conducted by the NSO. The President of the Philipines proclaimed and declared that census official under Proclamation 28 dated April 18, 2001. On the other hand, the population growth rate of 3.78% used in the 2010 population projection for Malolos derived from the difference between the results of the official population census taken in 1995 and that taken in 2000. The Regional Director did not make the projection by counting the trees from the mountaintops. The data are based on evidence that is admissible even in a court of law.

 

The majority opinion claims that the NSO Regional Directors projection of the population of Malolos by 2010 is erroneous. Given that the total population of Malolos as of May 1, 2000 was 175,291 and its growth rate was 3.78% per year, its population will grow, according to the dissenting opinion, to only 241,550 in 2010.

But the majority opinion uses the following formula: 175,291 x 37.80% (arrived at by multiplying the 3.78 annual growth rate by 10 for the 10 years between 2000 and 2010) = 241,550. It uses a growth rate of 37.80% per 10 years to substitute for the stated official growth rate of 3.78% per year. It ignores logic and the natural cumulative growth of population.

 

In contrast, the NSO Regional Directors computation applies the growth rate of 3.78% per year, which is more logical in that the base is adjusted annually to reflect the year to year growth. Thus:

 

Base Rate Growth Year

 

175,291 x 3.78% = 181,917 2001

181,917 x 3.78% = 188,793 2002

188,793 x 3.78% = 195,929 2003

195,929 x 3.78% = 203,335 2004

203,335 x 3.78% = 211,021 2005

211,021 x 3.78% = 218,998 2006

218,998 x 3.78% = 227,276 2007

227,276 x 3.78% = 235,867 2008

235,867 x 3.78% = 244,783 2009

244,783 x 3.78% = 254,036 2010

 

Second. The constitutional check against gerrymandering, which means the creation of representative districts out of separate points of territory in order to favor a candidate,[4] is found in Section 5(3), Article VI of the Constitution. It states that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.

 

It should be noted, however, that this rule is qualified by the phrase as far as practicable. Hence, the fact that the creation of a legislative district for Malolos would separate the town of Bulacan from the rest of the towns comprising the first district, would not militate against the constitutionality of R.A. 9716. This is so because there is no showing that Congress enacted R.A. 9591 to favor the interest of any candidate. A city can aspire to have one representative who will represent its interest in Congress.

 

Third. Contrary to petitioners claim, R.A. 9591 is a reapportionment bill. It does not require the conduct of a plebiscite for its validity. As the Court held in Bagabuyo v. Commission on Elections,[5] the holding of a plebiscite is not a requirement in legislative apportionment or reapportionment. A plebiscite is necessary only in the creation, division, merger, abolition or alteration of boundaries of local government units, which is not the case here.

 

I vote to dismiss the petition.

 

 

 

ROBERTO A. ABAD

Associate Justice



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

[2] Dueas, Jr. v. Commission on Elections, G.R. No. 185401, July 21, 2009.

[3] 113 Phil. 1, 5-6 (1961).

[4] Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 625 (1996).

[5] G.R. No. 176970, December 8, 2008, 573 SCRA 290, 306-307.