Saturday, August 22, 2009

Reapportionment in Malolos and Elsewhere

Since the 2010 elections are coming, it is understandable that politicians are struggling to position themselves as favorably for themselves as possible. One method being used is the creation of representative districts. I wish that some of the controversial cases on this subject, for instance, those in Malolos and in Camarines Sur, would reach the Supreme Court for final resolution. What are the constitutional principles at stake?

First, a representative district must consist of “contiguous, compact, and adjacent territory.” But this is not an absolute rule because this is required only “as far as practicable.”

Second, when a province is created, a new representative district is automatically created no matter how small the population is.

Third, when a city is created or its population increases, it is entitled to form a representativ district provided that the city has a population of at least 250,000. For purposes of determining the population size, the latest official census report is used even if, as the Court said in 1961, the report is not yet final. This is important for what is happening in Malolos, Bulacan.

More problematic is the question of creation of representative districts independently of the creation of a province or city. This is happening in Camarines Sur where a President's son is involved.

What makes this problematic is that the Constitution does not put down a minimum number. The Constitution, however, puts down a fourth principle based not on numbers but on proportionality. The rule says that legislative districts are "apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of uniform and progressive ratio."

What this fourth principle means is that uniformity should be maintained among the provinces such that a province with a large population should have proportionally more districts than smaller provinces and that corollarily the various districts should be of approximately the same population size. The basis of this rule is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the district representatives should represent as nearly as possible an equal number of constituents.

This principle is illustrated in a 1961 reapportionment declared invalid by the Supreme Court. The Court said that Republic Act 3040 violated the Constitution "because (a) it gave Cebu seven members while Rizal with a larger number of inhabitants got four only; (b) it gave to Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,601) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has three whereas Isabela, Laguna and Cagayan with more inhabitants have two each. And then Capiz, La Union and Ilocos Norte got 2 each whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only whereas Iloilo with less inhabitants (966,145) was given five."

The Court concluded: "For all the foregoing we hereby reiterate our Resolution declaring Republic Act 3040 infringed the provisions of the Constitution and is therefore void."

What should be noticed in all of this is that the disproportion is not just in the number of districts each province has but also necessarily in the number of inhabitants the variuos districts have. Thus, in determining constitutionality, it is not enough to look into the size of districts in one province; additionally the districts in one province must also be compared with those of other provinces. For instance, in the case of Camarines Sur, what should be looked into is not just the disproportion between the districts of Camarines Sur but also the disproportion in Camarines Sur with other districts in other provinces.

This leads to a fifth principle: “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 [Article VI, Section 5]” This is in recognition of the fact that over the years the size of representative districts change because of births and population movements. But this periodic reapportionment commanded by the Constitution must be done nationwide and not piecemeal, as is happening now. Piecemeal reapportionment affecting only one province will necessary result in unconstitutional disproportion with provinces whose districts are not readjusted.

Finally, it might be asked whether reapportionment is a "political question" over which the Court has no jurisdiction. The Court's answer is clear: "Needless to say, equality of representation in the legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the government."

Moreover, it is also obvious that the reapportionment done in one province should be the concern of all citizens because equality of representation is the concern of all.

24 August 2009

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